That if in any suit for replevin of property the plaintiff shall allege in his complaint a demand upon the defendant for the return of the property and a reasonable opportunity to comply therewith, and that he waives seizure and delivery thereof, the affidavit and bond prescribed in Sections 42-8-5 and 42-8-6 NMSA 1978 need not be filed, nor the writ issued. In such case, the verdict, if for the plaintiff, shall fix the value of the property, as well as the damages for detention; upon which verdict plaintiff shall have judgment for such damages, and either for the value of such property, as so fixed, or for the return thereof, at his election.
History: 1941 Comp., § 25-1507a, enacted by Laws 1945, ch. 14, § 1; 1953 Comp., § 22-17-7.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Court cannot augment or limit provisions of statute. — Provisions of replevin statute for seizing the property under a writ of replevin cannot be dispensed with, limited or augmented by rule of court. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795 (decided under former law).
When suit dismissed, even though implied waiver of seizure. — Where there was no showing that defendant had either actual or constructive possession of the guns at the time of trial, the dismissal of the suit by the trial court was proper, even if there was an implied waiver of seizure and delivery of the guns as provided in this section. Piner v. Pender, 1972-NMSC-010, 83 N.M. 502, 494 P.2d 164.
Date of wrongful detention, date for fixing property value. — The time for fixing the value of the property in case where plaintiff waived seizure and delivery of property and asked for damages was the date of the wrongful detention. Valley Chevrolet Co. v. Whitaker, 1966-NMSC-130, 76 N.M. 488, 416 P.2d 154.
Fair and reasonable basis for determination of value necessary. — Where the evidence revealed the value of property plaintiff sought judgment for as of the date defendant obtained possession, the value of the property when wrongfully detained one week later could reasonably be inferred. A fair and reasonable basis for determination of the value is all that is required. Valley Chevrolet Co. v. Whitaker, 1966-NMSC-130, 76 N.M. 488, 416 P.2d 154.
Slight departure in relief awarded, not ground for complaint. — In an action of replevin, where plaintiff waived seizure, affidavit and bond, and the trial court found for plaintiff, giving him an election whether to accept a return of the property subject to a lien which defendants had established on the property or take judgment for the value thereof, less the amount of the lien held by defendants, defendants could not complain of the slight departure in relief awarded if it did not comply literally with a statutory judgment in replevin. Ace Auto Co. v. Russell, 1955-NMSC-025, 59 N.M. 182, 281 P.2d 143.
Not separating actual value and damages, harmless error only. — Even though under this statute the actual value of the property and damages should have been separated, the error was harmless where, from an examination of the entire record, it would appear that the judgment of the trial court granted substantial justice. Therefore, it would be going too far to deprive a plaintiff of a recovery upon no better grounds than the bare informality of a verdict. Hicks v. Maestas, 1962-NMSC-102, 70 N.M. 347, 373 P.2d 916.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Recovery of damages in replevin for value of use of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.
Allowance of loss of profits from deprivation of use of detained property, 48 A.L.R.2d 1053.