TITLE 8

PROVISIONAL REMEDIES IN CIVIL ACTIONS

CHAPTER 3

CLAIM AND DELIVERY OF PERSONAL PROPERTY

8-302.  Affidavit of claim — Show cause order — Writ of possession. (1) Where a delivery is claimed, the plaintiff, by verified complaint or by an affidavit made by plaintiff or by someone on his behalf, filed with the court, shall show:

(a)  That the plaintiff is the owner of the property claimed or is entitled to the possession thereof, and the source of such title or right; and if plaintiff’s interest in such property is based upon a written instrument, a copy thereof shall be attached;

(b)  That the property is wrongfully detained by the defendant, the means by which the defendant came into possession thereof, and the cause of such detention according to his best knowledge, information and belief;

(c)  A particular description of the property, a statement of its actual value, and a statement to his best knowledge, information, and belief concerning the location of the property and of the residence and business address, if any, of the defendant;

(d)  That the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure.

(2)  The court shall, without delay, examine the complaint and affidavit, and if it is satisfied that they meet the requirements of subsection (1) of this section, it shall issue an order directed to the defendant to show cause why the property should not be taken from the defendant and delivered to the plaintiff. Such order shall fix the date and time for the hearing thereof, which shall be no sooner than five (5) days from the issuance thereof, and shall direct the time within which service thereof shall be made upon the defendant. Such order shall inform the defendant that he may file affidavits on his behalf with the court and may appear and present testimony on his behalf at the time of such hearing, or that he may, at or prior to such hearing, file with the court a written undertaking to stay the delivery of the property, in accordance with the provisions of section 8-306, Idaho Code, and that, if he fails to appear, plaintiff will apply to the court for a writ of possession without further notice to defendant. If the writ of possession has issued prior to the hearing, the defendant may apply to the court to have the hearing set at an earlier date. Such order shall fix the manner in which service thereof, together with copies of the complaint and affidavit, shall be made, which shall be by personal service, or in such manner as the judge may determine to be reasonably calculated to afford notice thereof to the defendant under the circumstances appearing from the complaint and affidavit. The plaintiff shall cause proof of service to be filed with the court prior to the hearing.

(3)  Upon examination of the complaint and affidavit and such other evidence or testimony as the judge may, thereupon, require, a writ of possession may be issued prior to hearing, if probable cause appears that any of the following exist:

(a)  The defendant gained possession of the property by larceny, as defined by any section of chapter 46, title 18, Idaho Code;

(b)  The property consists of one (1) or more negotiable instruments or credit cards;

(c)  By reason of specific facts shown, the property is perishable, and will perish before any noticed hearing can be had, or is in immediate danger of destruction, serious harm, concealment, or removal from this state, or of sale to an innocent purchaser, and that the holder of such property threatens to destroy, harm, conceal, remove it from the state, or sell it to an innocent purchaser.

Where a writ of possession has been issued prior to hearing under the provisions of this section, the defendant or other person from whom possession of such property has been taken may apply to the court for an order shortening the time for hearing on the order to show cause, and the court may, upon such application, shorten the time for such hearing, and direct that the matter shall be heard on not less than forty-eight (48) hours’ notice to the plaintiff.

(4)  Under any of the circumstances described in subsection (1) of this section, or in lieu of the immediate issuance of a writ of possession under any of the circumstances described in subsection (3) of this section, the judge may, in addition to the issuance of an order to show cause, issue such temporary restraining orders, directed to the defendant, prohibiting such acts with respect to the property, as may appear to be necessary for the preservation of rights of the parties and the status of the property.

(5)  Upon the hearing on the order to show cause, the court shall consider the showing made by the parties appearing, and shall make a preliminary determination which party, with reasonable probability, is entitled to possession, use, and disposition of the property, pending final adjudication of the claims of the parties. If the court determines that the action is one in which a prejudgment writ of possession should issue, it shall direct the issuance of such writ.

History:

[I.C., sec. 8-302, as added by 1973, ch. 118, sec. 2, p. 219.]