Property held under a redelivery bond in replevin is in custodia legis, the same as if in the officer's actual possession." § 1720. Quashing writ-Forms A motion to quash the writ of replevin must be filed in apt time, and must be interposed before pleading in chief, or answering to the merits."7 (Caption.) MOTION TO QUASH WRIT OF REPLEVIN Comes now the said defendant, C. D., and moves the court tc quash, set aside, vacate, and hold for naught the writ of replevir issued in this cause on the day of -, 19-, by the clerk of this court, and to order the release of the property seized by the sheriff thereunder, for the reason that no bond or undertaking was given by the plaintiff herein for such writ of replevin, as required by law, prior to the issuance thereof. (Caption.) Now, on this X. Y., Attorney for Defendant. ORDER QUASHING WRIT OF REPLEVIN day of 19-, comes on for hearing the motion of the defendant herein, C. D., to quash and set aside the writ of replevin issued herein on the day of — 19-, by the clerk of this court, plaintiff appearing by his attorney, G. H., and defendant appearing by his attorney, X. Y., and the court after hearing the argument and being fully advised in the premises, finds that no bond or undertaking was given by the plaintiff, A. B., herein for such writ of replevin, as required by law, prior to the issuance thereof. third party and that he held it as his agent. Boyce v. Augusta Camp No. 7,429, M. W. A., 78 P. 322, 14 Okl. 642. 76 Grossman Co. v. White, 52 Okl. 117, 152 P. 816. 77 Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013. Where the plaintiff filed her petition, affidavit, and undertaking in replevin with the justice, who immediately issued a summons and an order of replevin separately, and delivered them to a constable, who seized the property in dispute, and delivered it to plaintiff, and afterwards, on motion of defendant, the summons and order of replevin were quashed, and an alias summons in proper form issued, plaintiff retaining possession of the property, the action should be deemed to have been commenced when the original summons and order of replevin was issued. Gilbert v. Stephens, 55 P. 1070, 6 Okl. 673. It is therefore ordered that said writ of replevin be and the same is hereby quashed, set aside, vacated, and held for naught, and the sheriff of county, Oklahoma, is hereby commanded to return to said defendant, C. D., all property seized and held by him by virtue of said writ of replevin. § 1721. Return Judge. "The return day of the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be ten days after it is issued." 78 1726. Issues, proof, and variance—Matters to be proved. Variance. § 1722. Complaint-Form and requisites A petition in replevin alleging plaintiff's ownership of property and his right to immediate possession, and defendant's wrongful detention thereof stated a cause of action." 79 In order to state a cause of action to recover a building, the petition should specifically aver such a state of facts as will clearly show that such building is personal property, and that plaintiff has a right to maintain the action. It is not sufficient to aver generally that such building is personal property.s0 The petition should allege that defendant is in possession.81 78 Rev. Laws 1910, § 4802. 79 Walker v. Hinton (Okl.) 172 P. 73; Stone v. American Nat. Bank, 127 P. 393, 34 Okl. 786. 80 Bridges v. Thomas, 58 P. 955, 8 Okl. 620. 81 A petition in replevin which shows that defendant W. obtained a stock of goods from plaintiff by fraud, and further stated that, after rescission and Where the affidavit in replevin, there being no separate petition. contains all the essentials of a petition, it should be treated as both affidavit and petition, and the filing of the same and the issuance of a summons therein constitutes commencement of the action.82 But where a petition has been filed, the affidavit and bond for an ancillary order of replevin are not parts of the pleadings, and whether a cause of action has been stated is determined by the averments of the petition, which is not affected by defects in the averments of the affidavit or by irregularities in the bond.s The fact that in a petition it appeared from the exhibits attached for the purpose of identifying the goods that a third person was at one time a purchaser of the goods does not render it necessary, in order to state a cause of action, that the inference of such sale be rebutted by an allegation of facts avoiding the effect of the sale.** Where, after personal service the only objection to the petition is by motion to vacate a judgment by default, and the grounds relied on are that the special ownership of plaintiff and its rights to the property are insufficiently pleaded, but the petition sets forth the specific facts constituting plaintiff's title, alleging it to be that of a mortgagee under a chattel mortgage, and stating that it deeming itself insecure, it took possession of the property, it is sufficient. 85 demand for return of the goods, W. sold and delivered them to defendant E., who "now claims said jewelry or an interest therein," sufficiently states facts showing that E. was in possession of the property at the commencement of the action. Wails v. Farrington, 116 P. 428, 27 Okl. 754, 35 L. R. A. (N. S.) 1174. 82 Mann v. Ridenhour, 46 Okl. 565, 149 P. 124. 83 Jantzen v. Emanuel German Baptist Church, 112 P. 1127, 27 Okl. 473, Ann. Cas. 1912C, 659. A petition which fails to state that the property sought to be recovered is wrongfully detained by plaintiff from defendant, is fatally defective, and the fact that the affidavit filed in the case to obtain an order of delivery contained such an allegation will not cure the defect. Wilhite v. Williams, 21 P. 256, 41 Kan. 288, 13 Am. St. Rep. 281. In replevin, where both an affidavit and a petition or bill of particulars are filed, the office of the affidavit ceases when the property is delivered, and the action thereafter proceeds upon the petition, and the facts set forth in the affidavit form no part of the issues unless again set forth in the petition or other pleadings. First Nat. Bank v. Cochran, 87 P. 855, 17 Okl. 538. 84 Samuels v. Burnham, 61 P. 755, 10 Kan. app. 574. 85 Thompson v. Caddo County Bank, 82 P. 927, 15 Okl. 615. The petition should allege plaintiff's ownership and right of possession, and defendant's wrongful detention, as of the time when the action was commenced.8 86 Where a petition is sufficiently broad to admit proof of a wrongful taking by defendant in the first instance, which was the sole. contention in plaintiff's opening statement, it was not error to overrule defendant's objection to the introduction of evidence on the ground that the petition did not state a cause of action.$7 A plaintiff, claiming a right of possession under special ownership, must set forth, and prove all the facts on which his claim is based.88 An error in stating the age of cattle sought to be recovered both in the petition and in the chattel mortgage under which plaintiff claims, is not fatal to plaintiff's case, where the identity of the cattle is shown.89 A petition for the recovery of "six head of one year old heifers, twelve head of one year old steers, twenty-one head of mixed cows." of a certain value, is insufficient as to description.90 (Caption.) PETITION IN REPLEVIN Comes now the plaintiff, A. B. Company, and for cause of action against the defendant, C. D., alleges and states: 1. That at all times hereinafter mentioned plaintiff was a corporation duly organized and existing under and by virtue of the laws of the state of 86 Burgwald v. Donelson, 43 P. 100, 2 Kan. App. 301. A petition in the district court which fails to state that the property sought to be recovered is wrongfully detained by defendant from plaintiff is fatally defective. Wilhite v. Williams, 21 P. 256, 41 Kan. 288, 13 Am, St. Rep. 281. Petition in an action to recover personal property from constable, alleging that it had been taken from plaintiff by officer under writ of attachment issued by justice of the peace and that action was decided for defendant, whereupon attachment was dissolved, and that plaintiff never perfected an appeal, was not demurrable as showing that property was taken by mesne or final process against plaintiff in view of Rev. Laws 1910, §§ 4798, 4799. Thompson v. Grove (Okl.) 180 P. 553. 87 Parkhurst v. Sharp, 61 P. 531, 10 Kan. App. 575. 88 Scott v. Vulcan Iron Works Co., 122 P. 186, 31 Okl, 334. 89 George R. Barse Live Stock Commission Co. v. Turner, 44 P. 987, 56 Kan. 778. 90 Smith v. McCoole, 46 P. 9SS, 5 Kan. App. 713. 2. That it has a special ownership in and is entitled to the immediate possession of the following described personal property, to wit: (Describe same), of the value of dollars. 19-, in 3. That plaintiff's special ownership consists in that on the day of in the state of plaintiff sold and delivered to one E. F., at his special instance and request, the above named and described dollars under a conditional sale whereby the plaintiff retained the title until the purchase price should be paid in full. -, for the sum of 4. That thereafter and before said purchase price was paid, the said E. F., without the knowledge or consent of plaintiff, wrongfully took the said cash register out of the state of, and brought the same to county, Oklahoma, and before plaintiff knew the same had been removed from the state of in wrongfully disposed of the same. 5. That under the laws of the state of a conditional sale of personal property, wherein title is retained by the seller, is valid, not only between the parties thereto, but as to innocent purchasers as well, and the laws of the state of at the time this contract was made did not require that the contract itself, or a copy thereof, should be recorded in any of the public offices thereof, and such continued to be the law to the time of the bringing of this action. 6. That there is due plaintiff on said the sum of dollars. 7. That defendant herein has purchased the same from said E. F., or his vendees, and, though demanded, has refused and still refuses to surrender the said same from plaintiff, from the damage in the sum of $ and unlawfully detains the day of 19-, to his Wherefore plaintiff prays judgment against the defendant that the defendant do return to plaintiff the said detained, and for the sum of $ costs of this action. so unlawfully -, his damages as aforesaid, and X. Y., Attorney for Plaintiff.1 91 Form in National Cash Register Co. v. Hans Paulson, 16 Okl. 204, 83 Pac. 204. (1616) |