A. Upon the defendant's motion before trial, the district court shall determine the truth of the facts stated in the plaintiff's affidavit at a hearing, to be held without delay. If the plaintiff fails to prove the truth of the facts stated, the writ shall be dissolved, the plaintiff shall be ordered to return the property to the defendant and an order shall be entered for the defendant against the plaintiff and his sureties for the attorney's fees incurred in the dissolution of the writ and for double damages for the use of the property from the time of its delivery to the plaintiff.

B. If the writ of replevin is dissolved, the action shall then proceed as if no writ had been issued.

History: 1953 Comp., § 22-17-18.1, enacted by Laws 1975, ch. 249, § 7.

Purpose of section. — The legislature, in enacting this section, intended to compensate a defendant in replevin for defending an action that is groundless, whether or not the defendant's property has actually been seized by the sheriff. Green Tree Acceptance, Inc. v. Layton, 1989-NMSC-006, 108 N.M. 171, 769 P.2d 84.

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.

Effect of failure to accept return of property. — By failing to accept plaintiff's tender to return the property, defendant limits the damages recoverable to those suffered during the period from the wrongful taking to the date of the tender. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

Extent of recovery of attorney fees. — Defendant may only recover reasonable attorney fees which it may have incurred in the dissolution of the wrongfully issued writ of replevin; no attorney fees are recoverable for otherwise defending the replevin action. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

This section and Section 42-8-11 NMSA 1978 not mutually exclusive. — This section and Section 42-8-11 NMSA 1978, providing for a return of property and the payment of damages upon failure of plaintiff to prosecute his case, 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.