Replevin

Miss. Code Ann. tit. 11, ch. 37
in effect

Miss. Code Ann. § 11-37-1 Repealed.

Repealed by Laws of 1975, ch. 508, § 30, eff from and after July 1, 1975. § 11-37-1 . [Codes, Hutchinson’s 1848, ch. 56, art. 11(2); 1857, ch. 56, art. 2; 1871, § 1529; 1880, § 2613; 1892, § 3707; 1906, § 4214; Hemingway’s 1917, § 3043; 1930, § 3079; 1942, § 2841] § 11-37-3 . [Codes, 1880, § 2635; 1892, § 3708; 1906, § 4215; Hemingway’s 1917, § 3004; 1930, § 3080; 1942, § 2842] § 11-37-5 . [Codes, 1880, § 2634; 1892, § 3709; 1906, § 4216; Hemingway’s 1917, § 3045; 1930, § 3081; 1942, § 2843] § 11-37-7 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (3); 1857, ch. 56, art. 3; 1871, § 1530; 1880, § 2614; 1892, § 3710; 1906, § 4217; Hemingway’s 1917, § 3046; 1930, § 3082; 1942, § 2844] § 11-37-9 . [Codes, 1880, § 2636; 1892, § 3711; 1906, § 4218; Hemingway’s 1917, § 3047; 1930, § 3083; 1942, § 2845] § 11-37-11 . [Codes, 1880, § 2615; 1892, § 3712; 1906, § 4219; Hemingway’s 1917, § 3048; 1930, § 3084; 1942, § 2846] § 11-37-13 . [Codes, 1880, § 2639; 1892, § 3713; 1906, § 4220; Hemingway’s 1917, § 3049; 1930, § 3085; 1942, § 2847] § 11-37-15 . [Codes, 1880, § 2622; 1892, § 3714; 1906, § 4221; Hemingway’s 1917, § 3050; 1930, § 3086; 1942, § 2848] § 11-37-17 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (3); 1857, ch. 56, art. 3; 1871, § 1531; 1880, § 2616; 1892, § 3715; 1906, § 4222; Hemingway’s 1917, § 3051; 1930, § 3087; 1942, § 2849; Laws, 1924, ch. 166] § 11-37-19 . [Codes 1892, § 3716; 1906, § 4223; Hemingway’s 1917, § 3052; 1930, § 3088; 1942, § 2850] § 11-37-21 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (3); 1857, ch. 56, art. 3; 1871, § 1531; 1880, § 2617; 1892, § 3717; 1906, § 4224; Hemingway’s 1917, § 3053; 1930, § 3089; 1942, § 2851; Laws, 1926, ch. 151] § 11-37-23 . [Codes, 1892, § 3718; 1906, § 4225; Hemingway’s 1917, § 3054; 1930, § 3090; 1942, § 2852] § 11-37-25 . [Codes, 1880, § 2638; 1892, § 3719; 1906, § 4226; Hemingway’s 1917, § 3055; 1930, § 3091; 1942, § 2853] § 11-37-27 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (8); 1857, ch. 56, art. 9; 1871, § 1536; 1880, § 2626; 1892, § 3720; 1906, § 4227; Hemingway’s 1917, § 3056; 1930, § 3092; 1942, § 2854] § 11-37-29 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (9); 1857, ch. 56, art. 10; 1871, § 1537; 1880, § 2627; 1892, § 3721; 1906, § 4228; Hemingway’s 1917, § 3057; 1930, § 3093; 1942, § 2855] § 11-37-31 . [Codes, 1880, § 2618; 1892, § 3722; 1906, § 4229; Hemingway’s 1917, § 3058; 1930, § 3094; 1942, § 2856] § 11-37-33 . [Codes, 1880, § 2619; 1892, § 3723; 1906, § 4230; Hemingway’s 1917, § 3059; 1930, § 3095; 1942, § 2857] § 11-37-35 . [Codes, 1880, § 2620; 1892, § 3724; 1906, § 4231; Hemingway’s 1917, § 3060; 1930, § 3096; 1942, § 2858] § 11-37-37 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (4); 1857, ch. 56, art 4; 1871, § 1532; 1880, § 2621; 1892, § 3725; 1906, § 4232; Hemingway’s 1917, § 3061; 1930, § 3097; 1942, § 2859; Laws, 1960, ch. 269] § 11-37-39 . [Codes, Hutchinson’s 1848, ch. 56, art. 11 (5); 1857, ch. 56, art. 5; 1871, § 1533; 1880, § 2622; 1892, § 3726; 1906, § 4233; Hemingway’s 1917, § 3062; 1930, § 3098; 1942, § 2860] § 11-37-41 . [Codes, 1880, § 2623; 1892, § 3727; 1906, § 4234; Hemingway’s 1917, § 3063; 1930, § 3099; 1942, § 2861] § 11-37-43 . [Codes, 1880, § 2623; 1892, § 3728; 1906, § 4235; Hemingway’s 1917, § 3064; 1930, § 3100; 1942, § 2862] § 11-37-45 . [Codes, 1857, ch. 56, art. 7; 1871, § 1535; 1880, § 2624; 1892, § 3729; 1906, § 4236; Hemingway’s 1917, § 3065; 1930, § 3101; 1942, § 2863] § 11-37-47 . [Codes, 1880, § 2628; 1892, § 3730; 1906, § 4237; Hemingway’s 1917, § 3066; 1930, § 3102; 1942, § 2864] § 11-39-49 . [Codes, 1880, § 2629; 1892, § 3731; 1906, § 4238; Hemingway’s 1917, § 3067; 1930, § 3103; 1942, § 2865] § 11-39-51 . [Codes, 1880, § 2630; 1892, § 3732; 1906, § 4239; Hemingway’s 1917, § 3068; 1930, § 3104; 1942, § 2866] § 11-39-53 . [Codes, 1880, § 2631; 1892, § 3733; 1906, § 4240; Hemingway’s 1917, § 3069; 1930, § 3105; 1942, § 2867] § 11-39-55 . [Codes, 1880, § 2632; 1892, § 3734; 1906, § 4241; Hemingway’s 1917, § 3070; 1930, § 3106; 1942, § 2868] § 11-39-57 . [Codes, 1880, § 2633; 1892, § 3735; 1906, § 4242; Hemingway’s 1917, § 3071; 1930, § 3107; 1942, § 2869] Editor’s Notes — Laws of 1975, ch. 508, § 30, effective July 1, 1975, additionally provides that “nothing in this act shall be construed to defeat or affect in any manner whatsoever any proceeding or cause of action commenced prior to the effective date of this act under the authority of the statutes hereby repealed.” As to current statutory provisions dealing with replevin actions, see § 11-37-101 et seq. Former § 11-37-1 related to how replevin commenced. Former § 11-37-3 related to form of affidavit. Former § 11-37-5 related to venue. Former § 11-37-7 related to the writ. Former § 11-37-9 related to form of the writ. Former § 11-37-11 related to how and when writ may be executed. Former § 11-37-13 related to form of return of officer. Former § 11-37-15 related to officer’s valuation prima facie evidence. Former § 11-37-17 related to property restored to defendant on bond. Former § 11-37-19 related to form of bond by defendant. Former § 11-37-21 related to plaintiff may give bond and receive property – bond to cover damage to, or depreciation in value of, property covered. Former § 11-37-23 related to plaintiff in certain cases has first right to bond. Former § 11-37-25 related to form of plaintiff’s replevin bond. Former § 11-37-27 related to bond returned, and may be excepted to. Former § 11-37-29 related to new bond may be required. Former § 11-37-31 related to property to be sold, when. Former § 11-37-33 related when property not taken, plaintiff may elect to recover damages. Former § 11-37-35 related to duplicate, alias, and pluries writs, and publication. Former § 11-37-37 related to the pleadings. Former § 11-37-39 related to judgment for plaintiff – default – writ of inquiry. Former § 11-37-41 related to judgment for defendant – default – writ of inquiry. Former § 11-37-43 related to judgment where no bond is given. Former § 11-37-45 related to execution. Former § 11-37-47 related to claim of property by third person. Former § 11-37-49 related to claim of property by third person – issue, trial and judgment. Former § 11-37-51 related to claim of property by third person – judgment in favor of claimant. Former § 11-37-53 related to claim of property by third person – claimant considered a plaintiff. Former § 11-37-55 related to laws applicable in case of death. Former § 11-37-57 related to replevin not maintainable in certain cases.

Miss. Code Ann. § 11-37-101 How replevin commenced; immediate seizure of property sought.

If any person, his agent or attorney, shall file a complaint under oath setting forth: A description of any personal property; The value thereof, giving the value of each separate article and the value of the total of all articles; The plaintiff is entitled to the immediate possession thereof, setting forth all facts and circumstances upon which the plaintiff relies for his claim, and exhibiting all contracts and documents evidencing his claim; That the property is in the possession of the defendant; and That the defendant wrongfully took and detains or wrongfully detains the same; and shall present such pleadings to a justice of the Supreme Court, a judge of the circuit court, a chancellor, a county judge, a justice court judge or other duly elected judge, such justice or judge may issue an order directing the clerk of such court to issue a writ of replevin for the seizure of the property described in said complaint, upon the plaintiff posting a good and valid replevin bond in favor of the defendant, for double the value of the property as alleged in the complaint, conditioned to pay any damages which may arise from the wrongful seizure of said property by the plaintiff. The said writ shall be directed to the sheriff or other lawful officer, returnable as a summons before the proper circuit or county court where the value of the property, as alleged in the complaint, exceeds the jurisdictional amount of the justice court, or to the circuit or county court or the proper justice court if the value shall not exceed such amount. The complaint along with the order of the court, the writ of replevin with the officer’s return thereon, and the bond of the plaintiff shall be filed in the proper court at once. Writs of replevin may be made returnable to the proper court of another county where the property may be found.

Miss. Code Ann. § 11-37-103 Judge may determine value of bond.

Should the judge to whom such pleadings are presented determine that the property in question is not properly valued, then he may, in his order, require a bond in an amount double the value of the property in question, as determined by such judge.

Miss. Code Ann. § 11-37-105 Form of plaintiff’s replevin bond.

The plaintiff’s bond in replevin shall be in the following form, to-wit: “Be it known, that we, , the principal and plaintiff, and and , sureties, agree and bind ourselves to pay to , the defendant, the sum of $, unless the said principal and plaintiff shall prosecute to effect his replevin action against the defendant for possession of (here describe the property in detail), now to be seized and delivered to the plaintiff; and shall, without delay, return said property to the defendant, if return thereof be adjudged, and shall pay to the defendant such damages as he may sustain by the wrongful suing out of a writ of replevin, and such costs as may be awarded against the plaintiff, and save harmless the officer who seizes and delivers said property to the plaintiff herein; otherwise to be of no force and effect. WITNESS OUR SIGNATURES, this day of , 2 . The above bond is approved by me this day of , 2 . ” Click to view

Miss. Code Ann. § 11-37-107 Venue.

The action of replevin may be instituted in the circuit or county court of a county or in the justice court of a county in which the defendant, or one (1) of several defendants, or property, or some of the property, may be found, and all proper process may be issued to other counties.

Miss. Code Ann. § 11-37-109 The writ.

The writ of replevin shall command the sheriff, or other lawful officer, to immediately seize and take possession of the property described in the writ and deliver it to the plaintiff after two (2) days, unless bonded by the defendant, and summon the defendant to appear before the court shown in the writ, in termtime or in vacation, and to answer to the action of the plaintiff.

Miss. Code Ann. § 11-37-111 Form of the writ.

The writ of replevin shall be in the following form, to-wit: “State of Mississippi County of To the sheriff of any lawful officer of County: We command you to immediately seize and take into your possession (here describe the property as shown in the declaration) alleged by , the plaintiff, to be wrongfully detained by , the defendant, and to deliver said property to the plaintiff unless bonded by the defendant; and to summon the said defendant to appear before the court of County, Mississippi, at o’clock .M., on the day of , 2 , to answer the suit of the plaintiff for the wrongful detention of said property, and have then and there this writ. WITNESS MY HAND, this day of , 2 . ” Click to view

Miss. Code Ann. § 11-37-113 How writ may be executed.

The writ may be executed by seizing the property described therein and summoning the defendant as in other civil actions, with a copy of the declaration and exhibits attached thereto to be attached to said writ, so as to fully inform the defendant as to the claim being made against him.

Miss. Code Ann. § 11-37-115 Property restored to defendant on bond.

If the defendant shall, within two (2) days from the seizure of the property, enter into bond, with sufficient sureties, to be approved by the officer or the court, payable to the plaintiff, in double the value of the property, conditioned that it shall be forthcoming to satisfy the judgment of the court, the property shall be restored to him pending final judgment.

Miss. Code Ann. § 11-37-117 Form of return of officer.

The officer’s return on such writ may be in the following form, to-wit: “Executed the within writ, by taking possession of (here describe the property described in the writ which has been seized by the officer) found in the possession of the defendant, and by summoning the defendant (naming him) according to the command of said writ, and I have delivered him a true copy of the writ, declaration and exhibits (or otherwise, as the case may be). The plaintiff (or defendant) having entered into bond, conditioned according to law, I delivered said property to the plaintiff (or defendant) and now return said writ. This day of , 2 . Sheriff” Click to view

Miss. Code Ann. § 11-37-119 New bond may be required of plaintiff.

If the defendant in a replevin suit shall at any time deem any bond taken to be insufficient, such defendant may, upon filing a motion in the court where the suit is pending, obtain a hearing to determine the sufficiency of such bond. The court shall, after hearing the evidence upon such motion determine the sufficiency or insufficiency of the bond. If the bond given by the plaintiff be adjudged insufficient, the plaintiff shall be required to give a new and sufficient bond, or restore the property to the defendant within the time limited by the court; and, in default thereof, the defendant shall be entitled to proceed and enter judgment as in case the plaintiff had nonsuited or otherwise made default.

Miss. Code Ann. § 11-37-121 When property not taken, plaintiff may elect to recover damages.

If the return of the officer on the writ shows a failure to take the goods and chattels, but the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property, and damages for the taking or detention of the property, as if he had thus commenced his action, and the plaintiff and his sureties shall, upon motion, be discharged on their bond.

Miss. Code Ann. § 11-37-123 Duplicate, alias, and pluries writs or process, and publication.

The plaintiff shall be entitled to duplicate writs or process to other counties, and alias and pluries writs or process to take the property or to summon the defendant, as in other actions. When property shall be taken under the writ, but the defendant cannot be found, the defendant shall be notified by publication, as provided in case of attachment under like circumstances, as provided in Section 11-33-37, Mississippi Code of 1972, except that said cause may be triable five (5) days after completion of publication.

Miss. Code Ann. § 11-37-125 Trial of replevin actions.

All replevin actions, whether followed by writ of replevin as herein provided or by summons, as hereinafter provided, shall be triable in termtime or in vacation, and the court or judge having jurisdiction shall proceed at such hearing to a final determination of the rights of the parties to possession, provided at least five (5) days process has been had upon the defendant.

Miss. Code Ann. § 11-37-127 Judgment for plaintiff.

If, upon a trial, the judgment shall be for the plaintiff, he shall retain possession of the property delivered to him under the writ of replevin, or if said property has not been found, then the plaintiff shall have a judgment for its value as determined by such hearing, or the value of the plaintiff’s interest therein. Upon the entry of a judgment for the plaintiff in such replevin action, the plaintiff and the sureties on his bond shall be fully and finally discharged and said bond cancelled. If the defendant shall have bonded the property after seizure and the judgment shall be for the plaintiff, then such judgment shall be that the defendant shall immediately deliver up said property to the plaintiff, with the defendant and the sureties on his bond to be liable to the plaintiff for any damage to or depreciation in the value of such property from the date of its surrender to the defendant under his bond until the date of its surrender by the defendant in obedience to the judgment of the court, in addition to any other damage the plaintiff may have sustained by reason of the wrongful taking or detention of such property by the defendant, all as determined upon writ of inquiry; or that the plaintiff recover from the defendant and his sureties the value of said property at the date of its return to the defendant under bond.

Miss. Code Ann. § 11-37-129 Judgment for defendant; default; writ of inquiry.

If the judgment be for the defendant, the plaintiff and the sureties on the plaintiff’s bond shall restore to the defendant the property, if to be had, or pay to him the value thereof and any damages for the wrongful suing out of the writ, as assessed upon writ of inquiry. If the defendant shall have made bond for such property, he and his sureties shall be fully discharged and he may recover any damages from the plaintiff and his sureties for the wrongful suing out of said writ. In case the plaintiff make default in prosecuting the replevin action, or be nonsuited, after seizure under writ of replevin, the defendant may have a writ of inquiry to assess the value of the property, or the damages sustained by the wrongful suing out of the writ, or both, as the case may be; and like judgment shall be rendered upon the finding as upon an issue found for him.

Miss. Code Ann. § 11-37-131 How replevin commenced—immediate seizure of property not sought.

If any person, his agent or attorney, shall desire to institute an action of replevin without the necessity of posting bond, and without requesting the immediate seizure of the property in question, he shall file a declaration under oath setting forth those matters shown in subparagraphs (a) through (e) of Section 11-37-101 and shall present such pleadings to a judge of the Supreme Court, a judge of the circuit court, a chancellor, a county judge, a justice of the peace or other duly elected judge, and such judge shall issue a fiat directing the clerk of such court, or a deputy clerk, to issue a summons to the defendant, to appear before a court or judge having jurisdiction, as determined by the value of the property as alleged in the declaration, and as outlined in Section 11-37-101, with said process being returnable in termtime or in vacation, upon at least five (5) days’ notice, summoning the defendant to appear for a final hearing to determine the rights of the parties as to possession, and upon such final hearing the court shall enter judgment accordingly.

Miss. Code Ann. § 11-37-133 Form of summons.

The summons may be in the following form, to-wit: “The State of Mississippi To the sheriff of County, Greetings: We command you hereby that you summons , (put full address) defendant, if to be found in your county, so that he be and appear before the court, to be holden in and for the County of , at the courthouse thereof in the City of , Mississippi, on the day of , 2 , at o’clock .M., to answer the plaintiff’s declaration in replevin filed herein, a copy of which is attached hereto, and for a final hearing to determine the rights of the parties herein as to the possession of the property as described in the declaration in replevin. Declaration filed when summons issued. ISSUED THIS day of , 2 . Clerk” Click to view

Miss. Code Ann. § 11-37-135 How summons shall be executed.

The summons in replevin shall be executed by summoning the defendant as in other civil cases, a copy of the declaration and exhibits being attached to said summons, directing the defendant to appear before the court shown in said summons, to answer the plaintiff’s declaration under oath. The officer serving said process shall determine whether or not the defendant is then in possession of the property described in the declaration and shall so indicate on his return.

Miss. Code Ann. § 11-37-137 Contempt of defendant for concealing or disposing of property.

If the defendant be found to be in possession of the property in question at the time of the service of process upon him, and if he shall conceal said property or dispose of the same, or fail to have the same within the jurisdiction of the court for such final judgment as may be rendered by the court in said replevin action, upon the return day of process herein, he shall be subject to penalties of contempt, upon motion of the plaintiff or order of the court.

Miss. Code Ann. § 11-37-139 Resettlement of action for trial on a future date.

Where process in any replevin action is by way of a summons in replevin, said cause shall be triable on its merits upon at least five (5) days process upon the defendant, and said cause shall be triable in termtime or in vacation and at such place as the court may direct. In the event it shall appear at the return day that there is secondary service of process, or less than five (5) days process upon the defendant, the court may enter an order resetting said matter for trial on a future date, so as to insure that said cause will not be tried on its merits except upon a resetting on secondary process or except upon at least five (5) days process upon the defendant. In the event of such order resetting said cause for such later date, it shall not be necessary that further process be served upon the defendant.

Miss. Code Ann. § 11-37-141 Judgment for plaintiff where property not previously seized.

Upon the trial of any replevin action in which the property has not previously been seized under writ of replevin, if the judgment be for the plaintiff, the court shall enter judgment awarding to the plaintiff the immediate possession of the property and such judgment shall order and direct the sheriff or other lawful officer to immediately seize the property in question, without further process upon the defendant, and deliver said property to the plaintiff, a certified copy of the final judgment rendered in such case being furnished to the sheriff as evidence of his authority to seize such property and deliver it to the plaintiff.

Miss. Code Ann. § 11-37-143 Judgment for defendant where property not previously seized.

In any replevin action in which the property has not been previously seized by writ of replevin, if the defendant be successful in such action, the judgment of the court shall be that the declaration of the plaintiff be dismissed and court costs assessed against the plaintiff.

Miss. Code Ann. § 11-37-145 Replevin actions to be treated as preference cases.

All replevin actions shall be treated by the court as preference cases and shall be heard on the merits at the earliest possible date, with the view of reaching an early determination as to the rights of the parties to the property in question.

Miss. Code Ann. § 11-37-147 Jury trial.

All replevin actions shall be tried by the court without a jury, unless one (1) of the parties thereto shall file a written request for a jury trial.

Miss. Code Ann. § 11-37-149 Claim of property by third person.

If a third person, not a party to the action of replevin, shall claim to be the owner or entitled to the possession of goods or chattels involved in a replevin action, he shall not be allowed to institute another action of replevin while the former is pending, but may intervene in said action and present his claim under oath.

Miss. Code Ann. § 11-37-151 Claim of property by third person—issue, trial and judgment.

After the trial of the action of replevin, an issue shall be made between the successful party and the claimant as to the validity of his claim, and a trial shall be had to determine the right of possession as between them and judgment entered accordingly.

Miss. Code Ann. § 11-37-153 Laws applicable in case of death.

All the provisions of law in reference to the death of either party, and the revival of the cause in personal actions, and the death of any of the obligors in a bond given in a replevin action, and the proceedings thereon before and after judgment, shall apply in like case to the action of replevin, and to a claim of property in such action.

Miss. Code Ann. § 11-37-155 Replevin not maintainable in certain cases.

The action of replevin shall not be maintainable in any case of the seizure of property under execution or attachment when a remedy is given to claim the property by making claim to it in some mode prescribed by law, but the person claiming must resort to the specific mode prescribed in such case, and shall not resort to the action of replevin.

Miss. Code Ann. § 11-37-157 Replevin cumulative and additional to all other actions.

The action created and established by this chapter shall be cumulative and in addition to all other actions presently available at law or in equity.

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