Whenever the property, goods or chattels of any person not a party to the record are wrongfully seized by any officer under or by virtue of any writ of execution, mesne or other process from any court, except under a writ of replevin, such person or persons may maintain a suit in replevin for the possession of the same against such officer, by proceeding in the usual manner as now provided by law for bringing suits in replevin and making an additional affidavit that such goods and chattels have not been seized under any process, execution or attachment against the property of the plaintiff, and that the defendant or defendants in the original process by virtue of which the same were so wrongfully seized by the officer have no interest, right or title and had no interest, right or title in the said chattels at the time of such wrongful seizure and that said plaintiff is entitled to the possession thereof or is the owner of the same: provided, that in any action of replevin, any third person claiming an interest in property replevied or the right to the possession of the same may intervene in such suit as in other suits of intervention, and; provided, further, that nothing herein shall be construed to prevent any third person in such suits from giving a forthcoming bond and retaining possession of the goods as provided by law.
History: C.L. 1897, § 2685 (230), added by Laws 1907, ch. 107, § 1 (230); Code 1915, § 4342; C.S. 1929, § 105-1703; 1941 Comp., § 25-1503; 1953 Comp., § 22-17-3.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Replevin against officer where his possession not actual. — Where the possession of an officer, though not actual, is such that he might maintain replevin for its recovery, replevin will lie against him. Hyde v. Elmer, 1907-NMSC-008, 14 N.M. 39, 88 P. 1132.
Section extends right of intervention to replevin actions. Consol. Liquor Co. v. Scotello & Nizzi, 1916-NMSC-019, 21 N.M. 485, 155 P. 1089.
Intervenors become parties and require notice of proceedings. — Where intervening petitions have been filed, with or without leave of court, the intervenors become parties entitled to notice of any subsequent proceedings affecting them. Encino State Bank v. Tenorio, 1922-NMSC-026, 28 N.M. 65, 206 P. 698.
Intervention by general owner permitted. — The general owner of property which is the subject of a replevin action between parties claiming a special interest therein may intervene, but it would not lie in his mouth to question the right of the plaintiff in such replevin action to make settlement with the defendant therein for any recovery by him in the general owner's behalf. Palmer v. Young, 1951-NMSC-067, 55 N.M. 469, 235 P.2d 534.
Burden on defendant to prove price of substitute articles. — Where some of the property sought to be recovered in replevin action belongs to plaintiff, it becomes burden of defendant to tender evidence and prove the actual value, article by article, or class by class, if some of the same kind had a common value, of the property whose assessed value they elect to take in lieu of a return of the property. Palmer v. Young, 1951-NMSC-067, 55 N.M. 469, 235 P.2d 534.
When money judgment in lieu of return of property erroneous. — In absence of proof by defendant, where some of replevied property belonged to plaintiffs, as to the value of property belonging to, or rightfully in defendant's possession, rendition of money judgment for defendants in lieu of return of replevied property is erroneous. Palmer v. Young, 1951-NMSC-067, 55 N.M. 469, 235 P.2d 534.
Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 66 Am. Jur. 2d Replevin § 25.