In case the plaintiff fails to prosecute his suit with effect and without delay judgment shall be given for the defendant and shall be entered against the plaintiff and his securities for the value of the property taken, and double damages for the use of the same from the time of delivery, and it shall be in the option of the defendant to take back such property or the assessed value thereof.

History: C.L. 1897, § 2685 (239), added by Laws 1907, ch. 107, § 1 (239); Code 1915, § 4350; C.S. 1929, § 105-1711; 1941 Comp., § 25-1512; 1953 Comp., § 22-17-12.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Right to possession and damages object of replevin suit. — In a suit for replevin, the right to possession is not the only question, but the right to damages for unlawful detention or for the use of the property. State ex rel. Sandoval v. Taylor, 1939-NMSC-013, 43 N.M. 170, 87 P.2d 681.

Even though statutory replevin in New Mexico is primarily a possessory action, it also involves the question of damages for the unlawful detention or loss of use. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964).

Statute takes no cognizance of party's motive in bringing wrongful replevin, nor does court find merit in the contention that recovery of damages is dependent upon proof of both "with effect" and "without unreasonable delay." Such an interpretation would result in an absurdity or irrationality. Riggs v. Gardikas, 1967-NMSC-120, 78 N.M. 5, 427 P.2d 890.

"With effect" and "without delay" defined. — The words of this statute "with effect" mean with success, and "without delay" means without unreasonable or unnecessary delay. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964).

In construing the words "with effect and without delay" the court found the words "with effect" to mean with success and "without delay" to mean without unreasonable or unnecessary delay. Vigil v. Johnson, 1955-NMSC-102, 60 N.M. 273, 291 P.2d 312.

Words of statute "with effect" mean with success. Riggs v. Gardikas, 1967-NMSC-120, 78 N.M. 5, 427 P.2d 890.

Issue of damages either litigated or barred forever. — The language of this statute is mandatory and the issue of damages must be litigated in the replevin action or be barred thereafter. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964).

Defendant must show injury in order to recover under this statute. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

Measure of damages based upon loss of use. — The measure of damages is based upon the loss of use of the property from the time of delivery, and doubled by the statute. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964).

Measure of damages recoverable by debtor for creditor's wrongful replevin is double damages for the use (or reasonable rental value) of property wrongfully replevied, for period of time from its wrongful taking to its tendered return. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

Damages valued at time and place where property taken. — The measure of damages in replevin is the value of the personal property at the time and place where it was taken, together with the damages sustained by reason of its unlawful detention. Heisch v. J.L. Bell & Co., 1902-NMSC-028, 11 N.M. 523, 70 P. 572 (decided under former law).

Double damages. — If damages by reason of a wrongful replevin are proven, the court has no option but to double them if requested. Riggs v. Gardikas, 1967-NMSC-120, 78 N.M. 5, 427 P.2d 890.

Where no damage proven, plaintiff recovers nominal damages. — The measure of damages where the plaintiff recovers in a replevin suit, where he has taken possession under the writ, is the damage proved for the detention of the property, and if none is proved, nominal damages. Hyde v. Elmer, 1907-NMSC-008, 14 N.M. 39, 88 P. 1132.

Absent proof of damages, judgment should provide for nominal damages. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964).

When defendant not obligated to reduce damages. — In replevin suit to recover an automobile for nonpayment of purchase-money notes, the defense being that defendant had paid the due note to the original holder thereof without notice that it had been assigned, defendant is not obligated to produce a forthcoming bond or take other precautions to reduce the damages. The statute imposes double damages for wrongful levy, to compensate for the detriment proximately caused thereby. Giannini v. Wilson, 1939-NMSC-052, 43 N.M. 460, 95 P.2d 209.

Attorneys fees not recoverable. — It is error to award attorneys fees to the intervenor for defending the replevin action. It seems to be well settled in this jurisdiction that absent statutory authority or rule of court, attorneys fees are not recoverable as an item of damages. Riggs v. Gardikas, 1967-NMSC-120, 78 N.M. 5, 427 P.2d 890.

Effect of plaintiff's taking wool from replevined sheep on damages. — In replevin action, where plaintiff took wool from replevined sheep during detention, and judgment was for defendant, the wool, or its value, was recoverable, but not as damages, the statute allowing double damages for the use of the property, and the property recovered by defendant being the sheep and wool. Wirt v. George W. Kutz & Co., 1910-NMSC-039, 15 N.M. 500, 110 P. 575.

Where plaintiff files motion to dismiss, he abandons suit, and is liable for the double damages expressly authorized. Brannin v. Bremen, 1880-NMSC-001, 2 N.M. 40 (decided under former law).

Order sustaining objection to complaint establishes defendant's right to judgment against the plaintiff and his surety. Farmers' Cotton Fin. Corp. v. White, 1935-NMSC-017, 39 N.M. 132, 42 P.2d 204.

This section and Section 42-8-19 NMSA 1978 not mutually exclusive. — This section and Section 42-8-19 NMSA 1978, providing for the dissolution of a writ upon disproof of the supporting affidavit with an award of damages to the defendant, are not mutually exclusive. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

Debtor may pursue other remedies for other wrongs. — While debtor's remedies for wrongful replevin are limited by replevin statutes, those statutes do not preclude other causes of action that debtor may have that arose independent of any wrongful replevin. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

Effect of permitting party to plead general denial and cross-claim. — Where the plaintiff in replevin, without objection, permits defendant to plead both a general denial and a cross-action claiming judgment for unpaid portion of the purchase-price of the chattels, and joins issue with defendant on this claim, such plaintiff will not be heard to complain after verdict for defendant, that the replevin issues were not determined by the verdict. Reed v. Sibley, 1931-NMSC-003, 35 N.M. 307, 296 P. 572.

Summary judgment granted when action barred by res judicata. — It was not error for the federal court to grant summary judgment for defendant because the conversion action was barred by the doctrine of res judicata. Plaintiff claimed prior state court judgment resolved only the issue of defendant's money damages, and that a state court judgment is an estoppel only as to fact questions in issue in that case which were essential to a decision thereon. Held, that the counterclaim in the state court was a claim for a wrongful replevin, under this section, whose purpose was to settle in one suit all questions that may arise out of the unlawful taking or detention of property, and the damages issue had to be litigated in the replevin action or be barred thereafter. Rios v. Cessna Fin. Corp., 488 F.2d 25 (10th Cir. 1973).

Burden on defendant to prove price of substitute articles. — Where some of the property sought to be recovered in replevin action belongs to plaintiff, it becomes burden of defendants to tender evidence and prove the actual value, article by article, or class by class, if some of the same kind had a common value, of the property whose assessed value they elect to take in lieu of a return of the property. Palmer v. Young, 1951-NMSC-067, 55 N.M. 469, 235 P.2d 534.

Assessment of damages by court without jury was proper where plaintiff abandoned suit by dismissal. Lamy v. Remuson, 1882-NMSC-009, 2 N.M. 245 (decided under former law).

Satisfaction of judgment by return of property. — If, in an action of replevin, an alternative judgment is given, and at the time of the rendition of the judgment no election is made to take the money value of the property recovered, the return of the property before a levy of execution is a satisfaction of the judgment. Johnson v. Gallegos, 1900-NMSC-001, 10 N.M. 1, 60 P. 71 (decided under former law).

Where trial court declines to enter judgment in alternative for return of the property or for the payment of its assessed value, judgment must be reversed. Downing Bros. v. Mitchell, 1944-NMSC-065, 48 N.M. 561, 154 P.2d 235.

Judgment of state court res judicata as to damages. — Where car dealer is sued for replevin, the replevin action is tried on the merits, judgment is entered dismissing the complaint and awarding possession of the cars to the car dealer, and no appeal is taken, the judgment becomes final and the issue of damages is not raised in the first trial; in a second suit, the judgment in the state court is res judicata as to an issue of damages allegedly resulting from the wrongful replevin, and bars recovery. McCallister v. M-A-C Fin. Co., 332 F.2d 633 (10th Cir. 1964).

Order of restitution after judgment. — In action of replevin, where, after return of property to defendant, there was judgment for plaintiff, followed by order of restitution, the sheriff, claiming interest, was not entitled to show cause why he should be discharged from the order of restitution. Veeder v. Fiske, 1891-NMSC-037, 6 N.M. 288, 27 P. 642 (decided under former law).

Right of appeal not hindered by previous nonsuit. — Where a plaintiff in replevin is compelled to abandon his case by an adverse decision upon a vital point therein, to which he excepts, it is not a voluntary nonsuit precluding appeal. Ward v. Broadwell, 1854-NMSC-001, 1 N.M. 75 (decided under former law).

Failure to perfect appeal. — Where plaintiff failed to perfect appeal from order dismissing complaint, defendant had not so elected to take judgment for costs as to prevent him from afterward claiming the return of property or its value. Farmers' Cotton Fin. Corp. v. White, 1935-NMSC-017, 39 N.M. 132, 42 P.2d 204.

Dismissal of plaintiff's appeal not to deprive defendant of recovery. — On appeal to the district court, in an action of replevin brought before a justice of the peace (now magistrate), the plaintiff by dismissal of his appeal cannot deprive defendant of his right to recover against plaintiff the value of the property and damages for its detention, nor relieve the sureties on the appeal bond. Strauss v. Smith, 1896-NMSC-006, 8 N.M. 391, 45 P. 930 (decided under former law).

When failure to direct alternative relief not error. — Where judgment did not alternatively provide for the return of the property or to award payment of the assessed value of the property under this section, the failure to direct alternative relief was not error as the court had full authority to return the parties to their original positions when it ordered a dismissal of the case even though in an ordinary replevin case the judgment must be entered in accordance with the statute; in this particular case, however, where there was no replevin bond, an award to the defendant of the assessed value of the property would have been a useless thing. Historical Soc'y of N.M. v. Montoya, 1964-NMSC-132, 74 N.M. 285, 393 P.2d 21.

Judgment reversed for court's refusal to allow release of bondsman. — Where the affidavit for a writ of replevin was filed, the bond executed by an agent of plaintiff, and on a plea of not guilty by defendant, the cause was tried by a jury and judgment entered in favor of defendant for the value of the property with double damages and costs for the failure of plaintiff to prosecute the action, such judgment would be reversed on appeal for the refusal of the trial court to permit plaintiff to release the original bondsman and to substitute another instead in order to render such original bondsman competent as a witness, for he would then have been competent, being no longer a party. Ward v. Broadwell, 1854-NMSC-001, 1 N.M. 75 (decided under former law).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 66 Am. Jur. 2d Replevin §§ 59, 101 to 105.

Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 2 A.L.R. 200.

Right to damages as distinguished from interest for loss of use of property taken in replevin, 6 A.L.R. 478.

Amount of alternative money judgment in replevin as affected by sale of property, under foreclosure of lien of third person, while in hands of unsuccessful party, 22 A.L.R. 215.

Recovery for depreciation of property between date it was replevied and final judgment, 24 A.L.R. 1189.

Recovery of expenses for care or storage of property pending action of replevin, 43 A.L.R. 92.

Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in replevin for delivery or redelivery of chattels, 57 A.L.R. 806.

Assignment of judgment as carrying assignor's rights as to replevin bond, 63 A.L.R. 291.

Judgment in replevin as implying a direction for return of property, 65 A.L.R. 1302, 144 A.L.R. 1149.

Time for exercise of option under a judgment in replevin for return of property or payment of specified sum, 67 A.L.R. 1497.

Recovery of damages by defendant in replevin, 85 A.L.R. 674.

Basis, in case of alternative judgment in replevin, for determining value of property having different value when installed or used in connection with other property, 86 A.L.R. 111.

Interest on value of property where property itself cannot be recovered, 96 A.L.R. 132, 36 A.L.R.2d 337.

Alternative judgment in replevin as giving option to either party in regard to payment of damages or return of property, 170 A.L.R. 122.

Credit for upkeep or other expense in computing damages for use or detention of property, 7 A.L.R.2d 933.

Interest on damages allowed in replevin for period before judgment, 36 A.L.R.2d 337.

Recovery of fees as damages by successful litigant in replevin or detinue action, 60 A.L.R.2d 945.

Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 24 A.L.R.3d 768.

77 C.J.S. Replevin § 90 et seq.