(a)Availability of Replevin. A plaintiff claiming the possession of goods wrongfully taken or detained may replevy the goods on writ of replevin as provided by this rule and by law.(b)Writ of Replevin: Issuance.(1) The writ of replevin shall be filled out as provided in subdivision (c) of this rule and issued to the plaintiff's attorney by the clerk of the superior court in the county where the goods are located. Such writ shall issue only upon the order of a superior judge approving the writ and the replevin bond in an amount found as provided in paragraph (2) or (3) of this subdivision. The order shall specifically state the grounds of its issuance and shall be incorporated in and made part of the writ.(2) Except as provided in paragraph (3) of this subdivision, an order of approval may be issued only upon motion after 7 days' notice to the defendant, or on such shorter notice as the judge may prescribe for good cause shown, and hearing and upon findings by the court that there is a reasonable likelihood that the plaintiff will prevail in the replevin action, that the bond required by law has been given by plaintiff, and that the amount of the bond is based upon a reasonable valuation for the property of which replevin is sought The motion shall be filed with the complaint and shall be supported by an affidavit or affidavits meeting the requirements set forth in Rule 4.1(i). The motion and affidavit or affidavits, together with the notice of hearing thereon, shall be served upon the defendant in the manner provided in Rule 4 at the same time that the summons and complaint are served upon the defendant.(3) An order of approval may be issued ex parte upon motion and findings by the court:(A) that there is a reasonable likelihood that the plaintiff will prevail in the replevin action, that the bond required by law has been given by plaintiff, and that the amount of the bond is based upon a reasonable valuation for the property of which replevin is sought and:(B) that either:(i) the person of the defendant is not subject to the jurisdiction of the court in the action; or(ii) there is a clear danger shown by specific facts that the defendant if notified in advance of the replevin of the property will remove it from the state or conceal it; or(iii) there is immediate danger that the defendant will damage, destroy, or sell to a bona fide purchaser, the property to be replevied. The motion shall be filed with the complaint and shall be supported by an affidavit or affidavits meeting the requirements set forth in Rule 4.1(i). The motion and affidavit or affidavits shall be served upon the defendant with the writ of replevin as provided in subdivision (d) of this rule.(4) For good cause shown and recited in the order, the court may accept a personal bond, without surety.(c)Same: Form. The writ of replevin shall be dated and signed by the clerk. It shall contain the name of the court, the names and residences of the parties, the date of the complaint, and any order issued under subdivision (b) of this rule; be directed to any sheriff or constable in the state; and command the sheriff or constable to replevy the goods, which shall be described with reasonable particularity and their respective values stated.(d)Same: Service. The plaintiff's attorney shall deliver to the officer replevying the goods the original writ of replevin upon which to make the return, and attach thereto the bond required by law and a copy of the writ of replevin and bond for service upon the defendant. The officer shall forthwith cause the goods to be replevied and delivered to the plaintiff. If the replevin is approved on ex parte order in accordance with paragraph (3) of subdivision (b) of this rule, the defendant, when the summons and complaint are served upon the defendant as provided in Rule 4, shall be served with a copy of the writ of replevin and bond, with the officer's indorsement thereon of the date of execution of the writ. Any goods shall be replevied under such writ within 30 days after the filing of the complaint. If the replevin is approved on order upon notice and hearing in accordance with paragraph (2) of subdivision (b) of this rule, a copy of the writ of replevin and bond indorsed as required above shall be promptly served upon the defendant in the manner provided in Rule 5. Any goods shall be replevied under such writ within 30 days after the order approving it.(e)Allegations of Demand and Refusal; Title. If the action is for a wrongful detention only, a demand and refusal of possession before beginning the action shall be alleged by the plaintiff in replevin. Where the title to the goods of the plaintiff in replevin rests upon the title of a third person or upon a special property, the facts shall be alleged.(f)Defenses; Counterclaim. All defenses shall be made by answer. If the defendant in replevin claims title to the goods or relies upon the title of a third person or upon a special property, the answer shall so state. All claims by the defendant in replevin for a return of the goods, for damages, or for a lien, shall be made by counterclaim or answer.(g)Replevin on Counterclaim, Cross-Claim or Third-Party Complaint. Goods may be replevied on writ of replevin by a party bringing a counterclaim, a cross-claim, or a third-party complaint in the same manner as upon an original claim, provided that the goods are located within the county where the action is pending.(h)Equitable Replevin. These rules shall not be construed to extend or limit the availability of equitable replevin.(i)Return of Property Replevied on Ex Parte Order. On two days' notice to the plaintiff or on such shorter notice as the court may prescribe, a defendant from whom property has been replevied pursuant to an ex parte order issued in accordance with paragraph (3) of subdivision (b) of this rule may appear and move the judge who ordered issuance of the writ or the Presiding Judge of the court in which the action is pending for an order for the return to the defendant of the property replevied. Such appearance shall not submit the person of the defendant to the jurisdiction of the court. The judge shall proceed to hear and determine such motion as expeditiously as the ends of justice require. At the hearing, the plaintiff shall have the burden of justifying the continuance of the replevin. Unless the judge finds that there is a reasonable likelihood that the plaintiff will prevail in the replevin action, that the bond required by law has been given by plaintiff,and that the amount of the bond is based upon a reasonable valuation of the property replevied, the judge shall order return of the property to the defendant. Nothing herein shall be construed to abolish or limit any means, otherwise available by law, for obtaining return of the replevied property or damages or a lien, or for obtaining an adjudication of the rights of the parties in the replevied property.Amended Feb. 12, 1973, eff. 5/1/1973; 12/9/1988, eff. 3/1/1989; amended Sept. 20, 2017, eff. 1/1/2018;amended October 10, 2023 eff. 1/1/2024.Reporter's Notes-2024 Amendment
Rule 64(b)(1) is amended to delete an obsolete reference to a District Judge. Rule 64(b)(2), Rule 64(b)(3) and Rule 64(i) are amended to delete an obsolete requirement of a finding "that the amount of the valuation is within the jurisdiction of the superior court." The superior court has no monetary jurisdictional limit.
Reporter's Notes-2018 Amendment
Rule 64(b)(2) is amended to extend its 5-day time period to 7 days consistent with the simultaneous "day is a day" amendments to V.R.C.P. 6.