An Act concerning the code of civil
procedure for limited actions; relating to claim for
possession of property; bond; forms; amending
K.S.A. 61-2401 and repealing the existing
section; also amending Form No. 11, Form No.
20, Form No. 22 and Form No. 23, in
the appendix of forms following K.S.A. 61-2605
and repealing the existing forms.
Be it enacted by the Legislature of the State of
Kansas:
Section 1. K.S.A. 61-2401 is hereby
amended to read as follows: 61-
2401. The plaintiff, in an action to recover possession of specific
personal
property, at any time before the judgment is rendered, may claim
im-
mediate possession thereof under the following procedure:
(a) Affidavit. The plaintiff
shall file an affidavit, unless his or her
the
plaintiff's petition shall have
has been verified, which in either event shall
show:
(1) That the plaintiff is the owner of
the property claimed, sufficiently
describing it, or is lawfully entitled to the possession
thereof,;
(2) that it is wrongfully detained by the
defendant, or if it is held by
an officer under legal process, that demand for the same has been
made
and refused,; and
(3) the estimated value thereof.
(b) Hearing notice; bond. Except
as otherwise provided herein, after
filing the affidavit or verified petition, the plaintiff shall
apply to the court
for an order for the delivery of the property to him or
her the plaintiff in
the manner prescribed by subsection (b) of K.S.A. 60-207 and
amend-
ments thereto, and the motion made thereunder shall be
served upon the
defendant pursuant to K.S.A. 60-205 and amendments
thereto. After a
hearing and presentation of evidence on plaintiff's motion, and if
the
judge is satisfied as to the probable validity of plaintiff's claim
and that
delivery of the property to the plaintiff is in the interest of
justice and
will properly protect the interests of all the parties, the judge
may enter
or cause to be entered an order for the delivery of the property to
the
plaintiff.
Notwithstanding the foregoing provisions of
this subsection, the judge
may enter or cause to be entered the order for delivery of property
after
an ex parte hearing and without notice to and the
opportunity for a hear-
ing by the defendant, only if the judge is satisfied as to the
probable
validity of the following allegations to be contained in
plaintiff's affidavit
or verified petition:
(1) Possession of the property by the
plaintiff is directly necessary to
secure an important governmental or general public interest;
and
(2) there is a special need for very
prompt action due to the imme-
diate danger that the defendant will destroy or conceal the
property.
Prior to the issuance of the order for
delivery of the property, the
plaintiff shall file with the clerk of the court in which the
action is brought
a bond in not less than double the amount of the value of the
property
as stated in the affidavit or verified petition, or as found by the
court at
the hearing on plaintiff's motion, with one or more sufficient
sureties. It
shall be to the effect that plaintiff shall duly prosecute the
action, and pay
all costs and damages that may be awarded against him or
her the plaintiff,
and that if plaintiff is given possession of the property
he or she the
plaintiff will return it to defendant if it be so
adjudged. If the bond shall
be found to be sufficient, the clerk
judge shall approve the same and note
his or her the judge's approval thereon.
The defendant may challenge the
sufficiency of the bond as provided in subsection (b) of K.S.A.
60-705
and amendments thereto.
(c) Property in custodia legis.
If the property the possession of which
is sought is in the custody of an officer under any legal process,
it shall
nevertheless be subject to replevin under this section, but if
the same
such property is in the custody of any officer under any
process issued
out of a judicial proceeding, the petition or affidavit and bond
shall be
filed in the same proceeding out of which such process issued.
(d) Order for delivery of
property. The order for the delivery of the
property to the plaintiff shall be delivered to the appropriate
officer of
any county in the state in which the property is located. The order
shall
state the names of the parties, the description of the property and
the
value as set out in plaintiff's affidavit or verified petition, or
as found by
the court at the hearing on plaintiff's motion pursuant to
subsection (b).
It shall command the appropriate officer to take immediate
possession of
the property and deliver it to plaintiff at the expiration of
twenty-four
(24) 24 hours unless there is compliance
with the requirements of sub-
section (f) of this section and make return of the
order on the day named
therein. If the officer to whom the order is delivered is a party
defendant,
then the order shall be served upon him or her
such officer by the clerk
of the court.
(e) Return and execution of
order. (1) Obtaining possession. In the
execution of the order the sheriff or marshal may break open any
building
or enclosure in which the property is located, if he or
she the sheriff or
marshal cannot otherwise obtain possession of the property
or entrance
to the building on demand.
(2) Execution. The sheriff or
marshal shall execute the order by taking
possession of the property described therein, and serving a copy on
the
person charged with the unlawful detainer in the same manner as
for
personal or resident service if he or she such
person can be found in the
county.
(3) Return. The return day of
the order of delivery shall be nine (9)
days after it is issued, if the order is executed within the county
where
the court is situated. In all other cases, the return day shall be
twenty
(20) 20 days after the order is
issued.
(f) Redelivery bond. The
defendant, within twenty-four (24) 24
hours
after service of a copy of the order, may deliver to the sheriff or
marshal
a bond to be approved by him or her the
sheriff or marshal, in not less
than double the amount of the value of the property as stated in
the order,
with one or more sufficient sureties, and the sheriff or marshal
shall re-
turn the property to the defendant. The bond shall be to the effect
that
the defendant will deliver the property to plaintiff if it be so
adjudged,
and will pay all costs and damages that may be adjudged against
him or
her the defendant. The sheriff or marshal
shall file the bond with the clerk
after noting his or her the sheriff's or
marshal's approval thereon. If the
defendant is a public officer, board or government agency, such
officer,
board or agency, in lieu of giving a redelivery bond, may retain
possession
of the property seized by filing with the clerk within the time
required
for giving the redelivery bond a writing certifying that the public
health,
safety or welfare would be jeopardized or impaired if the plaintiff
ac-
quired possession of the property prior to final judgment, in which
case
a hearing may be had on the issue of public interest at
the instance of
any party.
(g) Judgment in action. In an
action to recover the possession of per-
sonal property, judgment for the plaintiff may be for possession or
for
the recovery of possession, or the value thereof in case a delivery
cannot
be had, and for damages for the detention. If the property has
been
delivered to the plaintiff and the defendant claims a return
thereof, judg-
ment for the defendant may be for a return of the property, or the
value
thereof in case a return cannot be had, and damages for taking and
with-
holding the same.
Sec. 2. Form No. 11, in the
appendix of forms following K.S.A. 61-
2605, is hereby amended to read as follows:
Form No. 11: GENERAL EXECUTION AND
RETURN
(Caption of Case)
WRIT OF EXECUTION
The State of Kansas to the Sheriff (Marshal) of
________ County:
WHEREAS, on the ____ day of ________, 19__, in
an action then pending in
this court, ______, plaintiff (or defendant), recovered judgment
against
(Signature), |
[Seal of the court]
SHERIFF'S (MARSHAL'S) RETURN
On ________, 19__, __ o'clock __M., received
this writ.
On ________, 19__, __ o'clock __M., levied on
the non-exempt personal prop-
erty of ________, described in the following schedules.
On ________, 19__, advertised the same for sale.
On ________, 19__, sold the following items of
personal property at prices in-
dicated, and the moneys received from said
such sale are herewith delivered to the court.
|
$
|
$
|
$
|
|
$
|
$
|
$
|
Total received | $
|
|
(Signature and Title of Officer) |
FEES
Levy under execution | $
|
Advertising property | $
|
Offering for sale or selling | $
|
Issuing certificates of sale | $
|
No property found | $
|
Mileage:__________miles | $
|
Total | $
|
ORDER FOR DELIVERY OF PROPERTY
To the Sheriff (Marshal) of ________ County,
Kansas:
WHEREAS, the above-named plaintiff has commenced an
action in this court against
the above-named defendant for the recovery of certain personal
property and has filed his
or her the plaintiff's affidavit and
bond, as required by law, to obtain an order for the
immediate delivery of said such personal
property;
You are therefore commanded to take immediate
possession of the following described
personal property and deliver it to said
such plaintiff at the expiration of
twenty-four 24
hours unless prior to said such time you
receive a redelivery bond from the defendant, with
one or more sufficient sureties, in not less than double the value
of the property taken, as
provided by law. Which property is described and valued as follows:
(State description and
value of each item claimed as alleged.)
You shall also serve a copy of this order on the
defendant in the same manner as the
service of summons and make your return within ________ days
hereof.
(Signature), |
Dated ________________
[Seal of the court]
RETURN ON ORDER
(MANNER OF EXECUTION)
On ________, 19__, at __ o'clock, __M., I
received this order and executed
the same as follows:
* (1) Property Taken Into
Possession. On ________, 19__, I took into possession
the following articles of personal property, to wit:
(Signature), Sheriff |
Dated: ________________
Sec. 4. Form No. 22, in the appendix of
forms following K.S.A. 61-
2605, is hereby amended to read as follows:
Form No. 22: ORDER FOR POSSESSION OF
PROPERTY AND FORECLOSURE
OF
SECURED INTEREST AND RETURN
(Article 24)
(Caption of Case)
ORDER TO TAKE POSSESSION OF
PERSONAL PROPERTY
To the Sheriff (Marshal) of ________ County,
Kansas:
WHEREAS, the above-named plaintiff has commenced an
action in this court against
the above-named defendant for foreclosure of his or
her the plaintiff's security interest in
certain personal property and has filed his or her
the plaintiff's affidavit and bond, as re-
quired by law, to obtain an order that said
such personal property be immediately taken
into your possession and kept by you until further order of the
court;
You are therefore commanded to take immediate
possession of the following described
personal property and hold the same in your possession, unless
prior to the expiration of
twenty-four 24 hours you receive a
redelivery bond from the defendant, with one or more
sufficient sureties, in not less than double the value of the
property taken, as provided by
law. The description and estimated value of each article you are to
take into possession is
as follows: (State description and value of each item as alleged in
the plaintiff's affidavit.)
You shall also serve a copy of this order on the
defendant in the same manner as the
service of summons and make your return within ______ days of
the date hereof.
(Signature), |
Dated: ________________
[Seal of the court]
RETURN ON ORDER
(MANNER OF EXECUTION)
On ________, 19__, at __ o'clock, __M., I
received this order and executed
the same as follows:
* (1) Property Taken Into
Possession. On ________, 19__, I took into possession
the following articles of personal property, to wit:
(Signature), Sheriff |
Dated: ________________
Sec. 5. Form No. 23, in the appendix of
forms following K.S.A. 61-
2605, is hereby amended to read as follows:
Form No. 23: EXECUTION ON FORECLOSURE
OF SECURED INTEREST AND
RETURN
(Caption of Case)
SPECIAL EXECUTION AND ORDER OF SALE
The State of Kansas to the Sheriff (Marshal) of
________ county:
WHEREAS, on the ____ day of ________, 19__, in
an action then pending in
this court ________, plaintiff, recovered judgment against
________, defendant,
for the sum of ________ dollars, and court costs, actual and
estimated, in the sum of
______ dollars;
AND WHEREAS, on the same day, this court granted
judgment foreclosing the security
interest of the plaintiff and charging certain articles of personal
property with the payment
of said such debt and costs and that if
said such judgment be
is not satisfied within ten
10
days from the date thereof, said such
articles shall be sold, which articles of personal
property
are described as follows, to wit:
(Signature), |
Dated: ________________
[Seal of the court]
SHERIFF'S (MARSHAL'S) RETURN
(The return on this execution should be similar to the
return on the general execution,
Form No. 12.)
Sec. 6. K.S.A. 61-2401 and Form No. 11, Form No.
20, Form No.
22 and Form No. 23, in the appendix of forms following K.S.A.
61-2605,
are hereby repealed.
Sec. 7. This act shall take effect and be in force
from and after Jan-
uary 1, 2000, and its publication in the statute book.
I hereby certify that the above BILL originated in the
HOUSE, and passed that body
____________________________________
__________________________________ |
Speaker of the House |
__________________________________ |
Chief Clerk of the House |
Passed the SENATE ______________________________
__________________________________ |
President of the Senate |
__________________________________ |
Secretary of the Senate |
APPROVED ______________________________
__________________________________ |
Governor |