1706. Defendant Where property belonging to one person is seized under a writ running against another, the owner may maintain replevin against the officer in his individual name or against him in his official capacity.42 § 1707. Intervention and substitution One having an interest in property replevined in an action between others may be made a party and take steps to protect his interest; 43 but intervener's right to recover property must exist when he intervenes.** One who neither demanded the property nor gave a bond could not be substituted for a plaintiff in replevin, who had made a demand and given bond, and who was in possession of the prop-erty.45 Where replevin is brought against a sheriff to recover chattels held by such officer under attachment, it is not error to permit the attachment plaintiff to be substituted as defendant, and to dismiss said cause as to such sheriff.46 Where the holder of a second mortgage replevins the chattels from the mortgagor, the holder of the first mortgage may be made a party to the replevin suit, though he styles his pleading an intervention.47 42 Mann v. Ridenhour, 46 Okl. 565, 149 P. 124; Irwin v. Walling, 44 P. 219, 4 Okl. 128; Burchett v. Purdy, 37 P. 1053, 2 Okl. 391. 43 Ely v. Holloway, 147 P. 1128, 95 Kan. 8. Where creditors cause the personal property of the debtor to be seized upon orders of attachment for the satisfaction of their debts, they acquire thereby an attachment lien upon the property; and in an action of replevin brought by a mortgagee or pledgee, against the officer holding the property by virtue of the orders of attachment, the creditors should be permitted to be made parties defendant, so that they may establish any facts that will defeat the claimant's title to the property seized by attachment. Wafer v. Harvey Co. Bank, 36 Kan. 292, 13 P. 209. 44 Essex v. Fife (Okl.) 168 P. 814. 45 Pierce v. Batten, 42 P. 924, 3 Kan. App. 396. 46 Moore v. Calvert, 58 P. 627, 8 Okl. 358. Civ. Code, § 45, allows the court in actions against officers for the recovery of property seized under execution to substitute the execution plaintiff upon application as defendant in such officer's stead. Held, that such substitution was discretionary with the court. Wafer v. Harvey Co. Bank, 13 P. 209, 36 Kan. 292. 47 First State Bank of Ardmore v. King & McCants, 133 P. 30, 37 Okl. 744, 47 L. R. A. (N. S.) 668; Comp. Laws 1909, § 5574 (Rev. Laws 1910, § 4697). 1716. Statutory provisions for delivery by attachment. 1717. Redelivery to defendant-Undertaking-Form. 1719. Effect of redelivery. 1720. Quashing writ-Forms. 1721. Return. § 1708. In general "The plaintiff, in an action to recover the possession of specific personal property, may, at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided herein." 48 Though a plaintiff seeking immediate possession of personalty must make the statutory affidavit and bond and procure an order of delivery, the right to maintain the action and to a trial of the main issue is not dependent upon such proceeding." In an action to recover specific personal property the plaintiff may claim its immediate delivery by filing the affidavit required by law, and the action of replevin may proceed as an action for damages, though the affidavit required is not filed.50 § 1709. Affidavit-Form "An order for the delivery of property to the plaintiff shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing: "First. A description of the property claimed. 48 Rev. Laws 1910, § 4798. 49 Scott v. Smith, 129 P. 49, 36 Okl. 313. 50 Lamont v. Williams, 23 P. 592, 43 Kan, 558. "Second. That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property. "Third. That the property is wrongfully detained by the defend ant. "Fourth. That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this article, or any other mesne or final process issued against said plaintiff; or, ."Fifth. If taken in execution, or on any order or judgment against the plaintiff, that it is exempt by law from being so taken. "Sixth. The actual value of the property. When several articles are claimed, the value of each shall be stated as nearly as practicable." 51 The office of an affidavit in replevin is to authorize the issuance of the writ, and although the affidavit is omitted, or is defective, the court may hear and determine the action, although the possession of the property may not be had without the affidavit, unless the same has been waived.52 AFFIDAVIT FOR REPLEVIN (Caption.) State of Oklahoma, County of SS.: being duly sworn, says that he is (or, they are) the owner (or, the owners) and entitled to the immediate possession of the following described property of the actual value, as follows, to wit: Description of Property Actual Value Total value 51 Rev. Laws 1910, § 4799. 52 Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013. The statute requiring an averment in an affidavit in replevin that "the property had not been seized by virtue of an order of delivery issued under dollars, and that All of the aggregate and actual value of said property was not taken in execution on any order of judgment against said plaintiff, or for the payment of any tax, fine, amercement, or assessed against him (or, them), or by virtue of any order or delivery issued in replevin or any other mesne or final process issued against him (or, them); that said property was taken in execution on a rendered in favor of — against said plaintiff, and that the same is exempt by law from being so taken; that said property was not taken for the payment of any tax, fine or amercement assessed against him (or, them), or by virtue of an order of delivery issued in replevin, or any other mesne or final process against him (or, them). Subscribed and sworn to before me this 19 § 1710. Replevin undertaking-Form day of "The order shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking in not less than double the value of the property, as stated in the affidavit to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages which may be awarded against him, and if the property be delivered to him, that he will return the same to the defendant if a return be adjudged." 53 Where a statutory bond is given in a replevin action, the provisions of the statute enter into and become a part of the bond.5 An action lies to recover specific personal property, and damages for the withholding thereof, without securing its immediate delivery by giving a bond.55 The obligors on a replevin bond given by plaintiff, who has received and retained the property, are estopped from questioning its validity for formal technical defects.56 this article," is sufficiently complied with by an averment in the affidavit that the property had not been taken under execution "by an order of the court." Scott v. Jones, 54 P. 308, 7 Okl. 42. 63 Rev. Laws 1910, § 4800. 54 Mulhall v. McVay, 37 P. 604, 2 Okl. 534. 55 Goodwin v. Sutheimer, 55 P. 486, 8 Kan. App. 212. 56 Leeper, Graves & Co. v. First Nat. Bank, 110 P. 655, 26 Okl. 707, 29 L. R. A. (N. S.) 747, Ann. Cas. 1912B, 302, Under the statute, providing that in an action of replevin, upon the filing of a bond and affidavit by the plaintiff, as therein specified, it shall be the duty of the clerk to issue an order for the delivery of the property to plaintiff, the duty of the clerk is purely ministerial, and he is not excused from issuing such order upon compliance with the requirements of said sections by the fact that the property is intoxicating liquor, and that the action is against the sheriff, who has seized it under criminal process." REPLEVIN BOND for the (Caption.) Whereas, has commenced an action against recovery of the possession of certain personal property belonging to said plaintiff : Now, we the undersigned, residents of said county and state, bind ourselves to said defendant, in the sum of - dollars, that said plaintiff shall duly prosecute the above action and pay all costs and damages that may be awarded against him, and, if a return of the property therein delivered to him be adjudged, that he will deliver the same to said defendant. (Qualification of sureties.) § 1711. Order of replevin-Form "The order for the delivery of the property to the plaintiffs shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein." 58 An action to recover specific personal property may be maintained in the county or district courts of state, although no order is issued for delivery of such property before judgment."" 57 Easter v. Traylor, 21 P. 606, 41 Kan. 493. 58 Rev. Laws 1910, § 4801. 59 Thompson v. Grove (Okl.) 180 P. 553. The right to maintain replevin does not depend on the taking out of an |