NM Stat § 42-8-1 (2021)
2021 New Mexico Statutes|Chapter 42 - Actions and Proceedings Relating to Property|Article 8 - Replevin|Section 42-8-1 - [Right of action; purpose of remedy.]

Any person having a right to the immediate possession of any goods or chattels, wrongfully taken or wrongfully detained, may bring an action of replevin for the recovery thereof and for damages sustained by reason of the unjust caption or detention thereof. History: C.L. 1897, § 2685 (228), added by Laws 1907, ch. 107, § 1 (228); Code 1915, § 4340; C.S. 1929, § 105-1701; 1941 Comp., § 25-1501; 1953 Comp., § 22-17-1. ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Constitutionality. — The New Mexico replevin statutes allow property to be seized without giving the possessor, any possessor, any prior notice or opportunity for hearing. These prejudgment replevin provisions are unconstitutional under the Due Process Clause of the Fourteenth Amendment insofar as they deny the right to an opportunity to be heard before chattels are taken from their possessor. Sena v. Montoya, 346 F. Supp. 5 (D.N.M. 1972); see Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). New Mexico's present replevin statutes comply with due process standards established by United States supreme court in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974), and are therefore constitutional. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517. Primary purpose of action restoration of plaintiff's property. — Replevin, under this statute, is a possessory action, the primary object of which is plaintiff's right to the immediate possession of the property and, secondarily, the recovery of damages by the plaintiff for the unjust caption, or detention thereof. Novak v. Dow, 1970-NMCA-104, 82 N.M. 30, 474 P.2d 712. Secondary purpose, recovery of damages. — Replevin is a possessory action, the main purpose of which is to restore plaintiff to immediate possession of the property and which secondarily permits recovery also of damages for the unjust caption or detention. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795. Plaintiff recovers on strength of title or right to possession. — In replevin plaintiff must recover, if at all, on the strength of his own title or right to possession. Having no title or right of possession in himself, plaintiff cannot prevail on any claim of weakness in his adversary's title. Adams v. Heisen, 1967-NMSC-018, 77 N.M. 374, 423 P.2d 414. Writ accomplishes same function as summons. — The writ of replevin in an action of replevin accomplishes the same function in process, as does a summons in an ordinary civil action. Citizens Bank v. Robinson Bros. Wrecking, 1966-NMSC-114, 76 N.M. 408, 415 P.2d 538. Exclusive remedy for recovery of goods and chattels. — The action of replevin provided for by this statute is exclusive of all other remedies for the recovery of the possession of goods and chattels, and an action in the nature of detinue at common law is not maintainable in this jurisdiction. Troy Laundry Mach. Co. v. Carbon City Laundry Co., 1921-NMSC-038, 27 N.M. 117, 196 P. 745. Strict statutory compliance required. — Any replevin action initiated pursuant to New Mexico's replevin statutes must comply strictly with the statutory requirements in order not to violate a defendant's due process rights. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517. Section replaces common law actions of replevin and detinue. — This section provides for an action in all cases where, under the common law, either replevin or detinue might have been maintained. Troy Laundry Mach. Co. v. Carbon City Laundry Co., 1921-NMSC-038, 27 N.M. 117, 196 P. 745. The action of replevin is a statutory proceeding designed to take the place of the common law actions of replevin and detinue. Citizens Bank v. Robinson Bros. Wrecking, 1966-NMSC-114, 76 N.M. 408, 415 P.2d 538. Damages for diminution in value. — This section permits the recovery of damages for the depreciation or diminution in value of the property replevied. Sec. Pac. Fin. Servs. v. Signfilled Corp., 1998-NMCA-046, 125 N.M. 38, 956 P.2d 837. Court cannot augment or limit provisions of statute. — Provisions of replevin statute for seizing the property under a writ of replevin cannot be dispensed with, limited or augmented by rule of court. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795 (decided under former law). Court lacks power to award possession to either party. — Since replevin under statute is a possessory action, primary purpose of which is to restore actual possession of the goods, where chattel or goods are not found or seized, court is without power or jurisdiction to award actual possession to either party. Wood v. Grau, 1951-NMSC-060, 55 N.M. 429, 234 P.2d 362. Where defendant claims title and possession, no demand necessary. — No demand is necessary in an action of replevin, where the defendant claims title and right to possession as incident thereto in himself. Heisch v. J.L. Bell & Co., 1902-NMSC-028, 11 N.M. 523, 70 P. 572; Ross v. Berry, 1912-NMSC-004, 17 N.M. 48, 124 P. 342. Rights of lien claimant. — Lien claimant, by voluntarily parting with possession of a chattel upon which he has a lien, does not thereby waive the lien, but waives the right to possession of the chattel, and may not repossess it merely on the strength of his lien, in the absence of special circumstances. Mathieu v. Roberts, 1926-NMSC-025, 31 N.M. 469, 247 P. 1066. No recovery of expenses incurred in locating cattle. — Plaintiff in replevin for cattle sold by one representing himself to be plaintiff's partner was not entitled to recover expenses incurred in locating cattle prior to demand of a good-faith purchaser. Irick v. Elkins, 1933-NMSC-106, 38 N.M. 113, 28 P.2d 657. Right to sell includes the right to possess, and thus the right to maintain replevin to recover the possession. Kitchen v. Schuster, 1907-NMSC-021, 14 N.M. 164, 89 P. 261. Seizure of property requisite to trial court's jurisdiction. — Since seizure of property under the writ of replevin is a requisite to the trial court's jurisdiction to determine the right to the possession of the property, where there has been no such seizure, the trial court does not have jurisdiction to grant a summary judgment determining right to possession. Novak v. Dow, 1970-NMCA-104, 82 N.M. 30, 474 P.2d 712. Jurisdiction of court dependent upon issuance and service of writ. — The jurisdiction of the court, to hear and determine actions in replevin instituted pursuant to this statute, is dependent upon the issuance and service of the writ which brings under the control of the court the property for the purpose of rendering a judgment in accordance with the object and purpose of the statute. Novak v. Dow, 1970-NMCA-104, 82 N.M. 30, 474 P.2d 712. The issuance and service of the writ of replevin is necessary to the jurisdiction of the court to hear and determine the action in replevin since it is by this means that the property is brought under control of the court for the purpose of giving judgment pursuant to the object and purpose of the statute. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795. Sufficiency of complaint. — A complaint in replevin which alleges all the facts required by statute to sustain the right is sufficient. Milliken v. Martinez, 1916-NMSC-044, 22 N.M. 61, 159 P. 952. In action of replevin, general verdict is sufficient, in absence of request for special findings. Gallegos v. Lopez, 1922-NMSC-001, 27 N.M. 603, 204 P. 71. Possession of property and damages only judgment rendered for plaintiff. — The only judgment that may be rendered, under the statute, in favor of the plaintiff, is for the possession of the property and damages for its unlawful caption or detention. Novak v. Dow, 1970-NMCA-104, 82 N.M. 30, 474 P.2d 712. The only judgment that can be rendered in favor of a plaintiff under this statute is that of recognizing possession of the property in the plaintiff and damages for its unlawful caption or detention by the defendant. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795. Judgment on merits bars recovery in subsequent action of trespass. — A judgment in replevin for defendants, appearing to have been rendered on the merits of the controversy, is a bar to any recovery by plaintiffs in a subsequent action of trespass between the same parties for the same taking of the same goods. Lowenthal v. Baca, 1900-NMSC-025, 10 N.M. 347, 62 P. 982 (decided under former law). Law reviews. — For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962). Am. Jur. 2d, A.L.R. and C.J.S. references. — 66 Am. Jur. 2d Replevin § 3. Replevin to recover motion picture film, 19 A.L.R. 1015. Replevin of undivided share in or undivided quantity of a larger mass, 26 A.L.R. 1015. Contempt by replevying goods seized in execution, 27 A.L.R. 1225. Right of husband or wife to maintain replevin against other, 41 A.L.R. 1054. Recovery of expenses for storage or care of property pending action of replevin, 43 A.L.R. 90. Executor, administrator or trustee, replevin against, in official capacity, 44 A.L.R. 655, 127 A.L.R. 687. Replevin for bank account, 44 A.L.R. 1522. Previous demand as a condition of replevin or trover against innocent purchaser of stolen chattels, 51 A.L.R. 1465. Partner's right to maintain action of replevin or unlawful detainer against copartner, 58 A.L.R. 633, 168 A.L.R. 1088. Conditional seller's action of replevin to recover possession of forfeited property, demand for payment or possession as condition precedent, 59 A.L.R. 140. Right of joint owner of personal property to maintain replevin against third person, 110 A.L.R. 353. Jurisdiction of justice of the peace (or similar court) in replevin action to recover fixtures on real property, 115 A.L.R. 524. Right of plaintiff in replevin to damages for detention of property during pendency of action as affected by his failure to claim immediate possession by complying with statutory provisions in that regard, 164 A.L.R. 758. Alternative judgment and replevin as giving option to either party in regard to payment of damages or return of property, 170 A.L.R. 122. Sufficiency of proof of possession of defendant at time of commencement of action, 2 A.L.R.2d 1043. Right of action for conversion as affected by assertion of rights or pursuit of remedies founded on continued ownership of the property, 3 A.L.R.2d 218. Rights and remedies where broker or agent, employed to purchase personal property, buys it for himself, 20 A.L.R.2d 1140. Revocation of license to cut and remove timber as affecting rights in respect of timber cut but not removed, 26 A.L.R.2d 1194. County that may bring replevin, or similar possessory action, 60 A.L.R.2d 487. Recovery of value of property in replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property, 97 A.L.R.2d 896. Modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233. 77 C.J.S. Replevin § 1 et seq.