An order for the delivery of the property cannot issue until a summons has been issued; " but an order of delivery, granted by the district court, cannot be set aside and vacated after answer for any informality or irregularity in its issue, or because no præcipe was filed by the party desiring it."1 state of Oklahoma, within and for the county of against a civil action for the recovery of the following specific personal property, to wit: List of Articles Value Total value $ and has filed his affidavit and undertaking, as required by law, in the clerk's office of said court, to obtain an order for the immediate delivery of said goods and chattels : This, therefore, is to command you as such sheriff, to take such goods and chattels above described, and deliver the same to the said -, plaintiff in said action, and of this order and your proceedings thereon make due return on or before the 19-. day of In witness whereof, I have hereunto set my hand and the seal of said court in the city of this day of A. D. 19—. order of delivery at or after the commencement of the action. Varner v. Bowling, 38 P. 481, 54 Kan. 380; Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013. 60 Pelham v. Edwards, 26 P. 41, 45 Kan. 547. 61 Carr v. Huffman, 27 P. 827, 47 Kan. 188. I executed the same by taking possession of the property therein, and, after holding the same twenty-four hours, delivered the, same to said plaintiff, and the defendant, within twenty-four hours after the service of said writ, having given an undertaking as required by law, I returned said property to said defendant. Dated § 1712. 19-. To different counties Sheriff, "An order may be directed to any other county than the one in which the action is brought, for the delivery of the property claimed. Several orders may issue at the same time, or successively, at the option of the plaintiff; but only one of them shall be taxed in the costs, unless otherwise ordered by the court." 2 § 1713. Execution of order "The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detainer of the property, or leave such copy at his usual place of residence." 68 Where an officer seizes property under a warrant charging the defendant with maintaining a liquor nuisance, and a claimant brings replevin for the property against the officer in another court, the officer is liable to commitment as for contempt for refusing to deliver the property in obedience to the writ of replevin.** 62 Rev. Laws 1910, § 4808. 63 Rev. Laws 1910, § 4803. 64 In re Massey, 42 P. 365, 56 Kan. 120. A writ of replevin to which a sheriff was defendant was served by the coroner, who made the following return: "Deputy Sheriff Rothrock accepts service, and then and there gave a redelivery bond for the within goods and chattels in the replevining of said goods. Service accepted by Deputy Sheriff R. and a redelivery bond filed this day and approved by me." Held, that the service was not irregular, owing to the writs having been served on the deputy sheriff, or on account of the acceptance of service by the deputy sheriff. Nipp v. Bower, 61 P. 448, 9 Kan. App. 854. If an action in replevin is properly brought in the county where the property is wrongfully held by an agent, who is made a party defendant and is summoned, the summons may be issued and service may be had in another county on the agent's principal, who claims the right to the possession as against the plaintiff.65 § 1714. Officer may forcibly enter buildings "The sheriff or other officer, in the execution of the order of delivery, may break open any building or inclosure in which the property claimed, or any part thereof, is concealed, but not until he has been refused an entrance into said building or inclosure and the delivery of the property, after having demanded the same." " § 1715. Custody of property Replevined property held under a redelivery bond is in custodia legis the same as if in the officer's actual possession." § 1716. Statutory provisions for delivery by attachment "In an action to recover the possession of specific personal property, the court, or judge in vacation, may, for good cause shown, before or after judgment, compel the delivery of the property to the officer or party entitled thereto by attachment, and may examine either party as to the possession or control of the property. Such authority shall only be exercised in aid of the foregoing provisions of this article." 68 "Any order for the delivery of property, issued under this article, without the affidavit and undertaking required, shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable, in damages, to the party injured." 9 69 65 Central Nat. Bank of Topeka v. Brooke, 81 P. 498, 71 Kan. 767. 66 Rev. Laws 1910, § 4809. 67 Noble Bros. v. Ballew, 59 Okl. 90, 158 P. 906; Bohannan v. Jennings, 121 P. 195, 31 Okl. 254. Since property taken in replevin is in custodia legis, a sale thereof by plaintiff, a chattel mortgagee, pending the suit, and an application of the proceeds to the mortgage debt, is invalid. Fidelity Trust Co. v. Pumroy, 45 Okl. 66, 144 P. 1052. 68 Rev. Laws 1910, § 4810. 69 Rev. Laws 1910, § 4811. § 1717. Redelivery to defendant-Undertaking-Form "If, within twenty-four hours after service of the copy of the order, there is executed by one or more sufficient sureties of the defendant, to be approved by the sheriff, an undertaking to the plaintiff, in not less than double the amount of the value of the property as stated in the affidavit of the plaintiff, to the effect that the defendant will deliver the property to the plaintiff, if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, the sheriff shall return the property to the defendant. If such undertaking be not given within twenty-four hours after service of the order, the sheriff shall deliver the property to the plaintiff." 970 A redelivery bond is a remedy given defendant to secure speedy relief where property is wrongfully seized in replevin."1 Where the plaintiff's bond is signed by himself alone without sureties, and the case is tried and judgment rendered without objection to the sufficiency of the undertaking a redelivery bond executed by the defendant on which the property was returned to him will, in the absence of objections to the validity of the plaintiff's bond, be held a valid undertaking, and binding on the parties, including the defendant.72 In replevin before a justice of the peace, the redelivery bond must be taken by the officer levying the writ of replevin.73 (Caption.) REDELIVERY BOND IN REPLEVIN Know all men by these presents: That we, and -, as principal, and as sureties, are held and firmly bound into the above named plaintiff in the penal sum of — dollars, for the payment of which we hereby bind ourselves, our heirs, executors. administrators and assigns, jointly and severally by these presents. The condition of the above obligation is such, that whereas, the above named plaintiff has caused to be issued out of the above entitled court in the above entitled cause a writ in replevin, under 70 Rev. Laws 1910, § 4804. 71 Perryman v. Brown, 105 P. 680, 25 Okl. 138. 72 Wood v. Colby, 30 Okl. 106, 118 P. 584. 73 Burton v. Doyle (Okl.) 165 P. 169. and by authority of which the property of the defendant described therein has been taken by - as sheriff of said county: Now, if the defendant above named shall deliver said property to said. plaintiff, if such delivery be adjudged, and shall pay all costs and damages that may be awarded against -, then this obligation to be void; otherwise, to remain in full force and effect. Witness our hands, this day of 19-. (Qualification of sureties.) § 1718. Plaintiffs' objection to sureties-Form "The plaintiff may, within twenty-four hours from the time the undertaking referred to in the preceding section is given by the defendant, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objections to them. When the plaintiff excepts, the sureties must justify, upon notice, as bail in criminal cases.' 9974 OBJECTION TO SURETIES ON REDELIVERY BOND IN REPLEVIN (Caption.) Το Sheriff of County, Oklanoma: You are hereby notified that the above named plaintiff, A. B., objects and excepts to the sufficiency of the sureties on the redelivery bond taken by you from the defendant, C. D., in said ac19, and you will therefore gov tion on the day of 19-. X. Y., Attorney for Plaintiff, By executing a redelivery bond, and procuring a return of the property thereunder, defendant is estopped from denying his possession of the property at the commencement of the action." 74 Rev. Laws 1910, § 4805. 75 Nye v. Weiss, 53 P. 152, 7 Kan. App. 627. 75 Defendant in replevin who executes a redelivery bond and regains possession of the property is estopped from denying that he was in possession at the time the action was brought, but not from proving that the title is in a |