# Title 32 — Judicial Remedies

## Chapter 32-07 — Claim and Delivery

### § 32-07-01. Plaintiff may claim immediate delivery.

The plaintiff in an action to recover the possession of personal property, at the time of
issuing the summons or at any time before answer, may claim the immediate delivery of such
property as provided in this chapter.
### § 32-07-02. Plaintiff's affidavit.

When a delivery is claimed, an affidavit must be made by the plaintiff, or by someone in the
plaintiff's behalf, stating:
1. That the plaintiff is the owner of the property claimed, particularly describing it, or
lawfully is entitled to the possession thereof by virtue of a special property therein, the
facts in respect to which shall be set forth.
2. That the property is detained wrongfully by the defendant.
3. The alleged cause of the detention thereof according to the affiant's best knowledge,
information, and belief.
4. That the property has not been taken for a tax, assessment, or fine pursuant to a
statute, nor seized under an execution or attachment against the property of the
plaintiff, or if so seized, that it by statute is exempt from such seizure.
5. The actual value of the property.
6. That a court order has been issued authorizing delivery hereunder, and is attached:
a. Pursuant to notice to defendant and hearing on an order to show cause; or
b. Without notice to defendant if, in addition to satisfying the requirements for an
order to show cause, probable cause appears to the court that:
(1) The defendant gained possession of the property by theft or fraud;
(2) The property consists of one or more negotiable instruments or credit cards;
(3) The property is perishable and will be irreparably damaged before a hearing
can be held; or
(4) The property is in immediate danger of destruction, serious harm,
concealment, or removal from the state, or of sale to an innocent purchaser.
### § 32-07-03. Requisition to sheriff.

The plaintiff, by an endorsement in writing upon the affidavit, may require the sheriff of the
county where the property claimed may be to take the same from the defendant and deliver it to
the plaintiff.
### § 32-07-04. Security by plaintiff.

Upon the receipt of an affidavit and requisition as provided in section 32-07-03 with a written
undertaking executed by one or more sufficient sureties approved by the sheriff, to the effect
that they are bound in double the value of the property, as stated in such affidavit, for the
prosecution of the action for the return of the property to the defendant, if return thereof is
adjudged, and for the payment to the defendant of such sum as for any cause may be
recovered against the plaintiff, the sheriff forthwith shall take the property described in the
affidavit, if it is in the possession of the defendant or the defendant's agent, and shall retain it in
the sheriff's custody. The sheriff also without delay shall serve on the defendant a copy of the
affidavit, requisition, and undertaking by delivering the same to the defendant personally, if the
defendant can be found, or to the defendant's agent from whose possession the property is
taken, or if neither can be found, by leaving them at the usual place of abode of either with
some person of suitable age and discretion.
### § 32-07-05. Exceptions by defendant to sufficiency of sureties or amount of

undertaking.
The defendant, within three days after the service of a copy of the affidavit, requisition, and
undertaking, may give notice to the sheriff that the defendant excepts to the sufficiency of the

sureties, or the amount of the undertaking. If the defendant fails to do so, the defendant shall be
deemed to have waived all objection to them. When the defendant excepts to the sufficiency of
the sureties, the sureties shall justify as provided in chapter 32-02, and the sheriff shall be
responsible for the sufficiency of the sureties until the objection to them is either waived as
above provided, or until they shall justify or new sureties shall be substituted and shall justify. If
the defendant excepts to the sureties, or to the amount of the undertaking, the defendant cannot
reclaim the property as provided in section 32-07-06. When the defendant excepts to the
amount of the undertaking, the sheriff shall retain possession of the property for five days after
the service of notice of such exception upon the sheriff. In such case the defendant, upon two
days' notice to the plaintiff, may apply to the judge of the court in which the action is pending for
an order requiring the plaintiff to execute an undertaking in such action in a larger amount than
that of the undertaking which has been served. The affidavits upon which the defendant bases
the defendant's application shall be served with the notice. If the application is denied, the order
of the court shall direct the sheriff forthwith to deliver the property to the plaintiff. If the
application is granted, the order of the court shall direct the sheriff to deliver the property to the
defendant unless the plaintiff within a time of not more than four days, to be fixed by the court,
shall execute a bond in such sum as the court shall prescribe, with sureties to be approved by
the sheriff.
### § 32-07-06. Redelivery to defendant.

At any time before the delivery of the property to the plaintiff, the defendant, if the defendant
does not except to the sureties of the plaintiff or the amount of the plaintiff's undertaking, may
require the return thereof upon giving to the sheriff a written undertaking executed by two or
more sufficient sureties to the effect that they are bound in double the value of the property as
stated in the affidavit of the plaintiff for the delivery thereof to the plaintiff, if such delivery is
adjudged, and for the payment to the plaintiff of such sum as for any cause may be recovered
against the defendant. If a return of the property is not so required within three days after the
taking and service of notice on the defendant, it shall be delivered to the plaintiff except as
provided in section 32-07-10.
### § 32-07-07. Justification.

The defendant's sureties shall justify in the manner provided in chapter 32-02. Upon such
justification the sheriff shall deliver the property to the defendant and the undertaking to the
plaintiff. The sheriff shall be responsible for the defendant's sureties, until they justify, or until
justification is completed or expressly waived, and may retain the property until that time, but if
they, or others in their place, fail to justify at the time and place appointed, the sheriff shall
deliver the property to the plaintiff.
### § 32-07-08. Concealed property.

If the property, or any part thereof, is concealed in a building or enclosure, the sheriff
publicly shall demand its delivery. If it is not delivered, the sheriff shall cause the building or
enclosure to be broken open and shall take the property into the sheriff's possession, and, if
necessary, the sheriff may call to the sheriff's aid the power of the county.
### § 32-07-09. Keeping property.

When the sheriff shall have taken property as in this chapter provided, the sheriff shall keep
it in a secure place and shall deliver it to the party entitled thereto upon receiving the sheriff's
lawful fees for taking and the sheriff's necessary expenses for keeping the same.
### § 32-07-10. Claim by third person.

If the property taken is claimed by any person other than the defendant or the defendant's
agent, and such person shall make affidavit of such person's title thereto and right to the
possession thereof, stating the grounds of such right and title, and shall serve the same upon
the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless
the plaintiff on demand shall indemnify the sheriff against such claim by an undertaking

executed by two sureties in the amount of the value of the property as specified in the affidavit
of the plaintiff. No claim to such property by any person other than the defendant or the
defendant's agent shall be valid against the sheriff, unless made as aforesaid, and
notwithstanding such claim, when so made, the sheriff may retain the property a reasonable
time to demand such indemnity.
### § 32-07-11. Papers filed with clerk.

The sheriff shall file the notice and affidavit, with the sheriff's proceedings thereon, with the
clerk of the court in which the action is pending, within twenty days after taking the property
mentioned therein.
### § 32-07-12. Specific personal property - Jury to find value and damages.

In an action for the recovery of specific personal property, the jury shall find by its verdict the
facts, as the case may be, as follows:
1. In case it finds against the defendant and the property has not been delivered to the
plaintiff, it shall find the value of the property, or of the plaintiff's interest therein, if less
than its full value, at the time of the taking, and that the plaintiff is entitled to a delivery
of the property, and it also shall assess the damages, if any are claimed in the
complaint, which the plaintiff has sustained by reason of the taking and detention of
such property.
2. In case it finds against the defendant and the property has been delivered to the
plaintiff, it also shall assess the damages, if any are claimed in the complaint, which
the plaintiff has sustained by reason of the taking and detention of such property.
3. In case it finds against the plaintiff and the property has been delivered to the plaintiff,
and the defendant in the defendant's answer claims a return of the property, it shall
find the value thereof, or of the defendant's interest therein, if less than its full value, at
the time of the taking, and it also shall assess the damages, if any are claimed in the
answer, which the defendant has sustained by reason of the taking and detention of
such property.
4. In case it finds against the plaintiff and the property has been retained by the
defendant, it shall find that the defendant is entitled to such property.
5. In case the jury finds that each party is entitled to a specific portion of the property in
controversy and such portion has been delivered to the opposite party and a return is
claimed in the complaint or answer, it shall find the value of such portion, or of the
party's interest therein, if less than its full value, at the time of the taking, and also shall
assess the damages, if any are claimed in the complaint or answer, in favor of the
plaintiff or defendant as hereinbefore provided as to the portion to which it finds the
plaintiff or defendant entitled.
6. Whenever the jury is so instructed, it shall find the value of specific portions of the
property in controversy or of the interest of either party therein, if less than its full
value, at the time of the taking and also shall assess the damages, if any are claimed
by the party in whose favor it finds, sustained by reason of the taking and detention of
such property.
