Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS
Article 37.--REPLEVIN AND FORECLOSURE OF SECURED INTERESTS
61-3701.Replevin; claim for possession ofproperty.Uponthe commencement of an action, the plaintiff may recover possession ofspecific personalproperty before or after judgment.
(a) Claim for possession of property. A plaintiff may seek an order toobtain possession ofspecific personal property as follows:Petition. The plaintiff shall file a petition stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession,the specificproperty and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by anofficer underlegal process who has refused delivery on demand; and
(4) the estimated value of the property.
(b) Prejudgment possession of property. A plaintiff may seek an order toobtain immediatepossession of specific personal property, before judgment as follows:Petition. The plaintiff shall file a petition signed under penalty ofperjury stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession,the specificproperty, and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by anofficer underlegal process who has refused delivery on demand; and
(4) the estimated value of the property.
(c) Hearing; notice, bond. After filing the petition, the plaintiff mayapply to the court for anorder for the delivery of the property prior to judgment on the merits of thecase.
(1) The application to the court for an order shall be by motion which,unless madeduring a hearing or trial, shall be made in writing, state with particularitythe groundstherefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuanttoK.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on plaintiff's motion, andif the judgeis satisfied as to the probable validity of plaintiff's claim and that deliveryof the property tothe plaintiff is in the interest of justice and will properly protect theinterests of all the parties,the judge may enter or cause to be entered an order for the delivery of theproperty to theplaintiff.
(4) Prior to the issuance of the order for delivery of the property, theplaintiff shall filea bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more sufficientsureties in asum double the amount of the fair market value of the property, as determinedby the judge,or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that the plaintiff shall duly prosecutetheaction, and payall costs and damages that may be awarded against the plaintiff, and that ifthe plaintiff is givenpossession of the property the plaintiff will return it to the defendant if itbe so adjudged. If thebond shall be found to be sufficient, the judge shall approve the same and noteapproval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided insubsection(b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right totakepossessionof the property, prior to taking possession of the property.
(e) Replevin; without hearing, notice.Notwithstanding the foregoing provisions of this section, the judge may enteror cause to beentered the order for delivery of property after an ex parte hearing andwithout notice to andthe opportunity for a hearing by the defendant, if the judge is satisfied as tothe probablevalidity of the following additional allegations to be contained in plaintiff'spetition:
(1) Possession of the property by the plaintiff is directly necessary tosecure animportant governmental or general public interest; and
(2) there is a special need for very prompt action due to the immediatedanger that thedefendant will destroy or conceal the property.
(f) Property in custodia legis. If the property is in the custody of anofficer under any legalprocess, it shall nevertheless be subject to replevin under this section, butif the same is in thecustody of any officer under any process issued out of a judicial proceeding,the petition andbond shall be filed in the same proceeding out of which such process issued.
(g) Order for delivery of property. The order for the delivery of theproperty to the plaintiffshall be delivered to the appropriate officer or person authorized to serveprocess of anycounty in the state in which the property is located. The order shall state thenames of theparties, the description of the property and the value as set out inplaintiff's petition, or asfound by the court at the hearing on plaintiff's application pursuant tosubsection (c). The order shallcommand the appropriate officer to take immediate possession of the propertyand deliver itto the plaintiff and make return of the order on the day named therein.
(h) Execution of order, return.(1) In the execution of the order the officer may break open any building orenclosurein which the property is located, if the officer cannot otherwise obtainpossession of the propertyor entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession ofthe propertydescribed therein, and serving a copy on the person charged with the order ofdelivery in thesame manner as for personal or resident service if the person can be found inthe county.
(3) The return day of the order of delivery shall be 10 days after it isissued, if theorder is executed within the county where the court is situated. In all othercases, the returnday shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order. Uponinspectionof the property the plaintiff may abandon their right to prejudgment possessionand shall soadvise the appropriate officer and the court.
(i) Perishable goods. When property shall be actually seized which is likelyto perish or tomaterially depreciate in value or threatens to decline speedily in value beforethe probabletermination of the suit, or the keeping of which would be attended withunreasonable loss orexpense, the court may order the same to be sold on such terms and conditionsas the judgemay direct, by the person having charge of the property, and a return of theproceedingsthereon shall be made by the person at a time to be fixed by the judge.
(j) Redelivery, bond. The defendant, after service of a copy of the deliveryorder, may applyto the court for redelivery of the property. The court shall order return ofthe property to thedefendant when the defendant files a bond with the clerk of the court, in anamount equal tothe plaintiff's bond, executed by the defendant with one or more sufficientsureties. The bondshall be to the effect that the defendant will deliver the property to theplaintiff if so adjudged,and will pay all costs and damages that may be adjudged against the defendant.If the bondshall be found to be sufficient, the judge shall approve the same and noteapprovalthereon. If the defendant is a public officer, board or government agency, suchofficer, boardor agency, in lieu of giving a redelivery bond, may retain possession of theproperty seized byfiling with the clerk a response certifying that the public health, safety orwelfare would bejeopardized or impaired if the plaintiff acquired possession of the propertyprior to finaljudgment, in which case hearing may be had on the issue of public interest atthe instance ofany party.
(k) Judgment in action. (1) In an action to recover the possession ofpersonal property,judgment for the plaintiff may be for possession or for the recovery ofpossession, or the valuethereof in case a delivery cannot be had, and for damages for the detention. Ifthe property hasbeen delivered to the plaintiff and the defendant claims a return thereof,judgment for thedefendant may be for a return of the property, or the value thereof in case areturn cannot behad, and damages for taking and withholding the same.
(2) In addition to other orders, thecourt may direct an appropriate officer to put the party entitled to possessionin possession ofthe property.
Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS
Article 37.--REPLEVIN AND FORECLOSURE OF SECURED INTERESTS
61-3701.Replevin; claim for possession ofproperty.Uponthe commencement of an action, the plaintiff may recover possession ofspecific personalproperty before or after judgment.
(a) Claim for possession of property. A plaintiff may seek an order toobtain possession ofspecific personal property as follows:Petition. The plaintiff shall file a petition stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession,the specificproperty and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by anofficer underlegal process who has refused delivery on demand; and
(4) the estimated value of the property.
(b) Prejudgment possession of property. A plaintiff may seek an order toobtain immediatepossession of specific personal property, before judgment as follows:Petition. The plaintiff shall file a petition signed under penalty ofperjury stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession,the specificproperty, and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by anofficer underlegal process who has refused delivery on demand; and
(4) the estimated value of the property.
(c) Hearing; notice, bond. After filing the petition, the plaintiff mayapply to the court for anorder for the delivery of the property prior to judgment on the merits of thecase.
(1) The application to the court for an order shall be by motion which,unless madeduring a hearing or trial, shall be made in writing, state with particularitythe groundstherefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuanttoK.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on plaintiff's motion, andif the judgeis satisfied as to the probable validity of plaintiff's claim and that deliveryof the property tothe plaintiff is in the interest of justice and will properly protect theinterests of all the parties,the judge may enter or cause to be entered an order for the delivery of theproperty to theplaintiff.
(4) Prior to the issuance of the order for delivery of the property, theplaintiff shall filea bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more sufficientsureties in asum double the amount of the fair market value of the property, as determinedby the judge,or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that the plaintiff shall duly prosecutetheaction, and payall costs and damages that may be awarded against the plaintiff, and that ifthe plaintiff is givenpossession of the property the plaintiff will return it to the defendant if itbe so adjudged. If thebond shall be found to be sufficient, the judge shall approve the same and noteapproval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided insubsection(b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right totakepossessionof the property, prior to taking possession of the property.
(e) Replevin; without hearing, notice.Notwithstanding the foregoing provisions of this section, the judge may enteror cause to beentered the order for delivery of property after an ex parte hearing andwithout notice to andthe opportunity for a hearing by the defendant, if the judge is satisfied as tothe probablevalidity of the following additional allegations to be contained in plaintiff'spetition:
(1) Possession of the property by the plaintiff is directly necessary tosecure animportant governmental or general public interest; and
(2) there is a special need for very prompt action due to the immediatedanger that thedefendant will destroy or conceal the property.
(f) Property in custodia legis. If the property is in the custody of anofficer under any legalprocess, it shall nevertheless be subject to replevin under this section, butif the same is in thecustody of any officer under any process issued out of a judicial proceeding,the petition andbond shall be filed in the same proceeding out of which such process issued.
(g) Order for delivery of property. The order for the delivery of theproperty to the plaintiffshall be delivered to the appropriate officer or person authorized to serveprocess of anycounty in the state in which the property is located. The order shall state thenames of theparties, the description of the property and the value as set out inplaintiff's petition, or asfound by the court at the hearing on plaintiff's application pursuant tosubsection (c). The order shallcommand the appropriate officer to take immediate possession of the propertyand deliver itto the plaintiff and make return of the order on the day named therein.
(h) Execution of order, return.(1) In the execution of the order the officer may break open any building orenclosurein which the property is located, if the officer cannot otherwise obtainpossession of the propertyor entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession ofthe propertydescribed therein, and serving a copy on the person charged with the order ofdelivery in thesame manner as for personal or resident service if the person can be found inthe county.
(3) The return day of the order of delivery shall be 10 days after it isissued, if theorder is executed within the county where the court is situated. In all othercases, the returnday shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order. Uponinspectionof the property the plaintiff may abandon their right to prejudgment possessionand shall soadvise the appropriate officer and the court.
(i) Perishable goods. When property shall be actually seized which is likelyto perish or tomaterially depreciate in value or threatens to decline speedily in value beforethe probabletermination of the suit, or the keeping of which would be attended withunreasonable loss orexpense, the court may order the same to be sold on such terms and conditionsas the judgemay direct, by the person having charge of the property, and a return of theproceedingsthereon shall be made by the person at a time to be fixed by the judge.
(j) Redelivery, bond. The defendant, after service of a copy of the deliveryorder, may applyto the court for redelivery of the property. The court shall order return ofthe property to thedefendant when the defendant files a bond with the clerk of the court, in anamount equal tothe plaintiff's bond, executed by the defendant with one or more sufficientsureties. The bondshall be to the effect that the defendant will deliver the property to theplaintiff if so adjudged,and will pay all costs and damages that may be adjudged against the defendant.If the bondshall be found to be sufficient, the judge shall approve the same and noteapprovalthereon. If the defendant is a public officer, board or government agency, suchofficer, boardor agency, in lieu of giving a redelivery bond, may retain possession of theproperty seized byfiling with the clerk a response certifying that the public health, safety orwelfare would bejeopardized or impaired if the plaintiff acquired possession of the propertyprior to finaljudgment, in which case hearing may be had on the issue of public interest atthe instance ofany party.
(k) Judgment in action. (1) In an action to recover the possession ofpersonal property,judgment for the plaintiff may be for possession or for the recovery ofpossession, or the valuethereof in case a delivery cannot be had, and for damages for the detention. Ifthe property hasbeen delivered to the plaintiff and the defendant claims a return thereof,judgment for thedefendant may be for a return of the property, or the value thereof in case areturn cannot behad, and damages for taking and withholding the same.
(2) In addition to other orders, thecourt may direct an appropriate officer to put the party entitled to possessionin possession ofthe property.
Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS
Article 37.--REPLEVIN AND FORECLOSURE OF SECURED INTERESTS
61-3701.Replevin; claim for possession ofproperty.Uponthe commencement of an action, the plaintiff may recover possession ofspecific personalproperty before or after judgment.
(a) Claim for possession of property. A plaintiff may seek an order toobtain possession ofspecific personal property as follows:Petition. The plaintiff shall file a petition stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession,the specificproperty and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by anofficer underlegal process who has refused delivery on demand; and
(4) the estimated value of the property.
(b) Prejudgment possession of property. A plaintiff may seek an order toobtain immediatepossession of specific personal property, before judgment as follows:Petition. The plaintiff shall file a petition signed under penalty ofperjury stating:
(1) Plaintiff is the owner or the person lawfully entitled to the possession,the specificproperty, and the factual basis for the claim;
(2) a description of the property;
(3) the property is wrongfully detained by the defendant, or is held by anofficer underlegal process who has refused delivery on demand; and
(4) the estimated value of the property.
(c) Hearing; notice, bond. After filing the petition, the plaintiff mayapply to the court for anorder for the delivery of the property prior to judgment on the merits of thecase.
(1) The application to the court for an order shall be by motion which,unless madeduring a hearing or trial, shall be made in writing, state with particularitythe groundstherefor and set forth the relief or order sought.
(2) The petition and application shall be served upon the defendant pursuanttoK.S.A. 61-3001 through 61-3006, and amendments thereto.
(3) After a hearing and presentation of evidence on plaintiff's motion, andif the judgeis satisfied as to the probable validity of plaintiff's claim and that deliveryof the property tothe plaintiff is in the interest of justice and will properly protect theinterests of all the parties,the judge may enter or cause to be entered an order for the delivery of theproperty to theplaintiff.
(4) Prior to the issuance of the order for delivery of the property, theplaintiff shall filea bond with the clerk of the court.
(d) Bond; contents, insufficiency.
(1) The bond shall be executed by the plaintiff and one or more sufficientsureties in asum double the amount of the fair market value of the property, as determinedby the judge,or such lesser amount as shall be approved by an order of the judge.
(2) The bond shall be to the effect that the plaintiff shall duly prosecutetheaction, and payall costs and damages that may be awarded against the plaintiff, and that ifthe plaintiff is givenpossession of the property the plaintiff will return it to the defendant if itbe so adjudged. If thebond shall be found to be sufficient, the judge shall approve the same and noteapproval thereon.
(3) The defendant may challenge the sufficiency of the bond as provided insubsection(b) of K.S.A. 60-705, and amendments thereto.
(4) The court shall release the bond, if the plaintiff abandons the right totakepossessionof the property, prior to taking possession of the property.
(e) Replevin; without hearing, notice.Notwithstanding the foregoing provisions of this section, the judge may enteror cause to beentered the order for delivery of property after an ex parte hearing andwithout notice to andthe opportunity for a hearing by the defendant, if the judge is satisfied as tothe probablevalidity of the following additional allegations to be contained in plaintiff'spetition:
(1) Possession of the property by the plaintiff is directly necessary tosecure animportant governmental or general public interest; and
(2) there is a special need for very prompt action due to the immediatedanger that thedefendant will destroy or conceal the property.
(f) Property in custodia legis. If the property is in the custody of anofficer under any legalprocess, it shall nevertheless be subject to replevin under this section, butif the same is in thecustody of any officer under any process issued out of a judicial proceeding,the petition andbond shall be filed in the same proceeding out of which such process issued.
(g) Order for delivery of property. The order for the delivery of theproperty to the plaintiffshall be delivered to the appropriate officer or person authorized to serveprocess of anycounty in the state in which the property is located. The order shall state thenames of theparties, the description of the property and the value as set out inplaintiff's petition, or asfound by the court at the hearing on plaintiff's application pursuant tosubsection (c). The order shallcommand the appropriate officer to take immediate possession of the propertyand deliver itto the plaintiff and make return of the order on the day named therein.
(h) Execution of order, return.(1) In the execution of the order the officer may break open any building orenclosurein which the property is located, if the officer cannot otherwise obtainpossession of the propertyor entrance to the building on demand.
(2) The appropriate officer shall execute the order by taking possession ofthe propertydescribed therein, and serving a copy on the person charged with the order ofdelivery in thesame manner as for personal or resident service if the person can be found inthe county.
(3) The return day of the order of delivery shall be 10 days after it isissued, if theorder is executed within the county where the court is situated. In all othercases, the returnday shall be 20 days after the order is issued.
(4) The plaintiff shall have the right to attend execution of the order. Uponinspectionof the property the plaintiff may abandon their right to prejudgment possessionand shall soadvise the appropriate officer and the court.
(i) Perishable goods. When property shall be actually seized which is likelyto perish or tomaterially depreciate in value or threatens to decline speedily in value beforethe probabletermination of the suit, or the keeping of which would be attended withunreasonable loss orexpense, the court may order the same to be sold on such terms and conditionsas the judgemay direct, by the person having charge of the property, and a return of theproceedingsthereon shall be made by the person at a time to be fixed by the judge.
(j) Redelivery, bond. The defendant, after service of a copy of the deliveryorder, may applyto the court for redelivery of the property. The court shall order return ofthe property to thedefendant when the defendant files a bond with the clerk of the court, in anamount equal tothe plaintiff's bond, executed by the defendant with one or more sufficientsureties. The bondshall be to the effect that the defendant will deliver the property to theplaintiff if so adjudged,and will pay all costs and damages that may be adjudged against the defendant.If the bondshall be found to be sufficient, the judge shall approve the same and noteapprovalthereon. If the defendant is a public officer, board or government agency, suchofficer, boardor agency, in lieu of giving a redelivery bond, may retain possession of theproperty seized byfiling with the clerk a response certifying that the public health, safety orwelfare would bejeopardized or impaired if the plaintiff acquired possession of the propertyprior to finaljudgment, in which case hearing may be had on the issue of public interest atthe instance ofany party.
(k) Judgment in action. (1) In an action to recover the possession ofpersonal property,judgment for the plaintiff may be for possession or for the recovery ofpossession, or the valuethereof in case a delivery cannot be had, and for damages for the detention. Ifthe property hasbeen delivered to the plaintiff and the defendant claims a return thereof,judgment for thedefendant may be for a return of the property, or the value thereof in case areturn cannot behad, and damages for taking and withholding the same.
(2) In addition to other orders, thecourt may direct an appropriate officer to put the party entitled to possessionin possession ofthe property.
