Before the writ of replevin is issued, the plaintiff or some creditable person in his stead shall file in the district court an affidavit stating:
A. that the plaintiff is lawfully entitled to the possession of the property mentioned in the complaint;
B. that the same was wrongfully taken or wrongfully detained by the defendant;
C. that the plaintiff has reason to believe that the defendant may conceal, dispose of, or waste the property or the revenues therefrom or remove the property from the jurisdiction, during the pendency of the action;
D. that the right of action accrued within one year; and
E. specific facts, from which it clearly appears that the above allegations are justified.
History: C.L. 1897, § 2685 (232), added by Laws 1907, ch. 107, § 1 (232); Code 1915, § 4344; C.S. 1929, § 105-1705; 1941 Comp., § 25-1505; 1953 Comp., § 22-17-5; Laws 1975, ch. 249, § 1.
ANNOTATIONSStrict statutory compliance required. — Any replevin action initiated pursuant to New Mexico's replevin statutes must comply strictly with the statutory requirements in order not to violate a defendant's due process rights. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
Filing of affidavit is prerequisite to obtaining writ of replevin from the court. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795.
Plaintiff's affidavit should be treated as his verified declaration, (now complaint) in replevin. Abren v. Brown, 1880-NMSC-004, 2 N.M. 11 (decided under former law).
Variance between complaint and affidavit not ground to strike complaint. — A variance between the complaint and affidavit, as to the character in which the plaintiff sues, is not a ground for striking out the complaint. Ross v. Berry, 1912-NMSC-004, 17 N.M. 48, 124 P. 342).
When error to quash writ for failure to file separate complaint. — It is error to quash a writ of replevin for failure to file a complaint separate from the affidavit, where the affidavit contains all the essential allegations of a complaint. Burnham-Hanna-Munger Dry Goods Co. v. Hill, 1912-NMSC-041, 17 N.M. 347, 128 P. 62.
Filing of affidavit required before process may issue. — Before any process may issue in an action of replevin, there must be filed an affidavit setting up the matters specified in the statute. Troy Laundry Mach. Co. v. Carbon City Laundry Co., 1921-NMSC-038, 27 N.M. 117, 196 P. 745.
Faulty affidavit. — Where original affidavit did not comply with Subsections C and E, trial court correctly quashed the writ of replevin it had previously entered; but where trial court granted leave to amend, amendment of affidavit relates back to date of original affidavit. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
When statute of limitations runs under conditional sales contract. — Under a conditional sales contract giving seller right to enter upon premises and retake possession of property upon default, the statute of limitations does not begin to run against the right to replevin the property upon default, until the seller elects to exercise the right to retake. Beebe v. Fouse, 1921-NMSC-045, 27 N.M. 194, 199 P. 364.
Affidavit not conclusive evidence as to value. — Affidavit of the plaintiff as to the value of the property is competent, but not conclusive evidence of that value in any trial of that issue as against the plaintiff, including assessment of damages where the plaintiff dismisses. Lamy v. Remuson, 1882-NMSC-009, 2 N.M. 245 (decided under former law).
On appeal to district court, amendments to affidavit permitted. — In an action of replevin, begun in justice of the peace court (now magistrate's court), and appealed to district court, the district court erred in refusing to permit plaintiff to amend the affidavit of replevin so as to show the value of the property in controversy. Romero v. Luna, 1892-NMSC-011, 6 N.M. 440, 30 P. 855 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 66 Am. Jur. 2d Replevin §§ 61 to 63.
Necessity and sufficiency of officer's jurat or certificate, 1 A.L.R. 1568, 116 A.L.R. 587.
77 C.J.S. Replevin § 46 et seq.