That where an original writ of attachment or replevin has been quashed for defect in the affidavit, bond or writ, the court shall allow an amendment thereof to cure the defect, under such circumstances as amendments of ordinary pleadings are allowed by law and with like effect; and alias and pluries writs of attachment or replevin shall be issued in the following cases:
A. where on attachment under a prior writ an insufficient amount of property has been levied upon to satisfy the amount of damages claimed in the affidavit, with costs accrued or likely to accrue;
B. where a prior writ has been quashed for defect that cannot be cured by amendment;
C. where, in replevin, the property to be replevied has not been found in the county to or in which the original writ was directed or attempted to be served and the plaintiff wishes to undertake the replevin of property in another county.
Alias and pluries writs of attachment shall not be issued except upon a new affidavit and bond laying the foundation therefor the same as required of original writs; but alias and pluries writs of replevin may be issued upon the foundation laid by the original affidavit, bond to be given to the officer serving the writ as in cases of original writs of replevin.
Where the goods and chattels sought to be seized by a proceeding in replevin are not found, the action shall not abate, but may proceed as for conversion upon the facts set out in the complaint as originally stated, or as the same may be amended.
History: C.L. 1897, § 2685 (227), added by Laws 1907, ch. 107, § 1 (227); Code 1915, § 4339; C.S. 1929, § 105-1642; 1941 Comp., § 22-114; 1953 Comp., § 26-1-14.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Amendments to complaint necessary. — In an action to replevy goods which had been sold by defendant, summary judgment for defendant is improper, but plaintiff should be permitted to amend the complaint and thereafter to proceed in conversion. Wood v. Grau, 1951-NMSC-060, 55 N.M. 429, 234 P.2d 362.
Amendment of affidavit in replevin relates back to the date of the original affidavit. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
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. — 6 Am. Jur. 2d Attachment and Garnishment §§ 253, 270 to 275.
Amendment of pleadings or the writ as ground for discharge of attachment, 74 A.L.R. 912.
Swearing to affidavit in attachment before unauthorized person as a defect curable by amendment, 91 A.L.R. 917.
Right of action for conversion as affected by assertion of rights or pursuit of remedies founded on continued ownership of the property, 3 A.L.R.2d 218.
7 C.J.S. Attachment § 168; 77 C.J.S. Replevin § 46 et seq.