Code of Virginia

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Code of Virginia
Title 8.01. Civil Remedies and Procedure
Chapter 3. Actions

Article 12. Detinue.

§ 8.01-114. When property to be taken by officer; summary of evidence, affidavits and report to be filed.

A. A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment if pretrial seizure is not sought at the time of filing.

A petition in detinue for pretrial seizure pursuant to this article may be filed either to commence the detinue proceeding or may be filed during the pendency of a detinue proceeding which commenced on a warrant or motion for judgment. If a petition is filed, it shall:

1. Describe the kind, quantity and estimated fair market value of the specific personal property as to which plaintiff seeks possession;

2. Describe the basis of the plaintiff's claim of entitlement to recover the property, with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and, if based on a contract to secure the payment of money, the amount due on such contract; and

3. Allege one or more of the grounds mentioned in § 8.01-534 and set forth specific facts in support of such allegation. Further, if a petition is filed, a judge, or a magistrate appointed pursuant to Article 3 (§ 19.2-33 et seq.) of Chapter 3 of Title 19.2, may issue an order or other process directed to the sheriff or other proper officer, as the case may be, commanding him to seize the property for the recovery of which such action or warrant is brought, or a specified portion thereof, and deliver same to the plaintiff pendente lite under the circumstances hereinafter set forth.

B. The judge or the magistrate may issue such an order or other process in accordance with the prayer of the petition after an ex parte review of the petition only upon a determination that: (i) the petition conforms with subsection A and (ii) there is reasonable cause to believe that the grounds for detinue seizure described in the petition exist. The plaintiff praying for an order shall, at the time that he files his petition, pay the proper costs, fees and taxes, and in the event of his failure to do so, the order shall not be issued.

C. The judge or magistrate, as the case may be, may receive evidence only in the form of a sworn petition which shall be filed with the papers in the cause.

D. The order commanding the seizure of property shall be issued and served together with the form for requesting a hearing on a claim of exemption from seizure as provided in § 8.01-546.1. The order shall be issued and returned as provided in § 8.01-541 and may be issued or executed on any day, including a Saturday, Sunday or other legal holiday. Service shall be in accordance with the methods described in § 8.01-487.1. The provisions of § 8.01-546.2 shall govern claims for exemption.

Code 1950, § 8-586; 1973, c. 408; 1974, c. 122; 1977, c. 617; 1978, c. 403; 1986, c. 341; 1993, c. 841.

§ 8.01-115. Bond required as prerequisite.

No such order or process, however, shall be issued until a bond, conforming with the requirements of § 8.01-537.1, is posted with the judge or magistrate, in a penalty at least double the estimated fair market value of the property claimed, payable to the defendant, with the additional condition to redeliver the property so seized to the defendant, or to the person from whose possession it was taken, if the right to the possession shall be adjudged against the plaintiff.

Code 1950, § 8-587; 1977, cc. 230, 617; 1986, c. 341; 1993, c. 841.

§ 8.01-116. Return of property to defendant or other claimant.

A. Subject to the provisions of subsection B below, the defendant in any such proceeding, or any other person claiming title to the property so seized and taken possession of by the officer, may have such property returned to him at any time after such seizure upon executing a bond, with sufficient surety, to be approved by the officer, payable to the plaintiff, in a penalty at least double the estimated value of the property. The bond shall contain a condition to (i) pay all costs and damages which may be awarded against the defendant in the proceeding and all damages which may accrue to any person by reason of the return of the property to the defendant or the claimant and (ii) have the property forthcoming to answer any judgment or order of the court or judge respecting the same. The bond shall be delivered to the officer and returned by him to the office of the clerk. The officer, on receiving the bond, shall forthwith return the property taken by him to the defendant or any other person claiming title thereto or from whose possession it was taken.

B. In any such proceeding, upon application of the defendant after reasonable notice to the plaintiff or his attorney, the judge of the court in which the proceeding is pending may order the property returned to the defendant upon such lesser security and upon such terms as in the nature of the case may be just and reasonable.

C. If no bond or security is delivered to the officer after his seizing and taking possession of such property, the property, if in the hands of the officer, shall be kept by him. However, if the property is perishable or expensive to keep, it may be sold by order of the court in the same manner as if it were a sale under execution.

Code 1950, § 8-588; 1973, c. 408; 1977, c. 617; 1993, c. 841.

§ 8.01-117. Exceptions to sufficiency of bonds.

Either party may file exceptions to the sufficiency of the bond of the other or of the claimant of the property, if he has given bond, or such claimant may file exceptions to the sufficiency of the bond of either party. The court before whom the proceeding is pending, may, on the motion of either party or of the claimant, after reasonable notice to the others, pass upon such exceptions and make such order thereupon as may be just and reasonable.

Code 1950, § 8-589; 1977, c. 617; 1993, c. 841.

§ 8.01-118. Repealed.

Repealed by Acts 1986, c. 341.

§ 8.01-119. Hearing to review issuance of order or process under § 8.01-114 or to consider request for such order or process.

A. Within thirty days after the issuance of any ex parte order or process pursuant to § 8.01-114, or promptly upon application of either party, and in either event after reasonable notice, the court in which such proceeding is pending shall conduct a hearing to review the decision to issue the order or other process described in § 8.01-114, or to consider the request of the plaintiff for issuance of such order or other process, whether or not the plaintiff has attempted to previously obtain an order pursuant to § 8.01-114. The hearing may be combined with a prompt hearing held pursuant to § 8.01-546.2 on an exemption claimed or a trial on the merits or both. If combined with a hearing on an exemption claim, the hearing shall be conducted within ten business days of the filing of the request for a hearing. If the plaintiff gives reasonable notice of his intention to apply for such an order or process before the court, such hearing may be on the return day of the warrant. Evidence may be presented in the same manner as in subsection B of § 8.01-114.

B. At the conclusion of the hearing, if the evidence establishes the facts set forth in subdivision 1 of subsection A of § 8.01-114, and the court is satisfied from the evidence that (i) one or more of the grounds set forth in § 8.01-534 exist, (ii) there is good reason to believe that the defendant is insolvent, so that any recovery against him for the alternate value of the property and for damages and costs will probably prove unavailing, or (iii) the plaintiff may suffer other irreparable harm if his request is denied, and if it further appears to the court that there is a substantial likelihood that the plaintiff's allegations will be sustained at the trial, then the court shall issue the order or other process requested by the plaintiff, or let stand an order issued in the cause pursuant to § 8.01-114.

If the decision of the court is in favor of the defendant, the former order or process issued in the cause shall be abated and the property returned to the possession of the person from whom it was taken to abide the final trial of the action or warrant. Proof of insolvency as grounds for possession of goods by the plaintiff shall not be introduced for purposes of affirming a prior ex parte order, but only upon an initial application for possession after reasonable notice.

C. Issuance of any order or process pursuant to this section shall be subject to the provisions of §§ 8.01-115 and 8.01-116.

Code 1950, § 8-591; 1973, c. 408; 1977, c. 617; 1986, c. 341; 1993, c. 841.

§ 8.01-120. No verdict as to some items; omission of price or value.

If in such detinue action, on an issue concerning several things, in one or more counts, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and if the verdict omit the price or value, the court may at any time have a jury impaneled to ascertain the same.

Code 1950, § 8-592; 1977, c. 617.

§ 8.01-121. Final judgment.

When final judgment is rendered on the trial of such detinue proceeding, the court shall dispose of the property or proceeds according to the rights of those entitled. When, in any such proceeding, the plaintiff prevails under a contract which, regardless of its form or express terms, was in fact made to secure the payment of money to the plaintiff or his assignor, judgment shall be for the recovery of the amount due the plaintiff thereunder or for the specific property, and costs. The defendant shall have the election of paying the amount of such judgment or surrendering the specific property. The court may grant the defendant a reasonable time not exceeding thirty days, within which to make the election upon such security being given as the court may deem sufficient. When the property involves an animal as defined in § 3.2-6500, the court may order the return of the animal to the prevailing plaintiff without regard to any alternative method of recovery.

If the defendant elects to surrender the property as aforesaid, upon delivery of the property to the plaintiff or repossession thereof by him, the plaintiff may proceed to sell the property in accordance with the applicable provisions of the Uniform Commercial Code (Part 6 (§§ 8.9A-601 et seq.) of Title 8.9A) with all the rights and responsibilities therein provided.

Code 1950, § 8-593; 1964, c. 219; 1977, c. 617; 1987, c. 1; 1993, c. 841.

§ 8.01-122. Charges for keeping property.

The legal charges, if any, for keeping any such property, while in the possession of the officer, shall be paid by the plaintiff and certified by the officer to the court who, in case such order or process be not abated and final judgment be rendered for the plaintiff, shall tax the same along with the other costs of the suit.

Code 1950, § 8-594; 1977, c. 617.

§ 8.01-123. Recovery of damages sustained for property withheld during appeal.

When a judgment for specific personal property is affirmed by an appellate court, or an injunction to such judgment is dissolved, the person who is entitled to execution of such judgment, or who would be entitled if execution had not been had, may, on motion to the court from which such execution has issued, or might issue, after fifteen days' notice to the defendant or his personal representative, have a jury impaneled to ascertain the damages sustained by reason of the detention of such property, subsequent to such judgment, or if it was on a verdict, subsequent to such verdict; and judgment shall be rendered for the damages, if any, so ascertained.

Code 1950, § 8-595; 1977, c. 617.