CHAPTER 46 HOUSE BILL No. 2184 An  Act concerning the code of civil procedure for limited actions; relating to claim for
possession of property; bond; forms; amending K.S.A. 61-2401 and repealing the existing
section; also amending Form No. 11, Form No. 20, Form No. 22 and Form No. 23, in
the appendix of forms following K.S.A. 61-2605 and repealing the existing forms.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 61-2401 is hereby amended to read as follows: 61-
2401. The plaintiff, in an action to recover possession of specific personal
property, at any time before the judgment is rendered, may claim im-
mediate possession thereof under the following procedure:

      (a) Affidavit. The plaintiff shall file an affidavit, unless his or her the
plaintiff's petition shall have has been verified, which in either event shall
show:

      (1) That the plaintiff is the owner of the property claimed, sufficiently
describing it, or is lawfully entitled to the possession thereof,;

      (2) that it is wrongfully detained by the defendant, or if it is held by
an officer under legal process, that demand for the same has been made
and refused,; and

      (3) the estimated value thereof.

      (b) Hearing notice; bond. Except as otherwise provided herein, after
filing the affidavit or verified petition, the plaintiff shall apply to the court
for an order for the delivery of the property to him or her the plaintiff in
the manner prescribed by subsection (b) of K.S.A. 60-207 and amend-
ments thereto, and the motion made thereunder shall be served upon the
defendant pursuant to K.S.A. 60-205 and amendments thereto. After a
hearing and presentation of evidence on plaintiff's motion, and if the
judge is satisfied as to the probable validity of plaintiff's claim and that
delivery of the property to the plaintiff is in the interest of justice and
will properly protect the interests of all the parties, the judge may enter
or cause to be entered an order for the delivery of the property to the
plaintiff.

      Notwithstanding the foregoing provisions of this subsection, the judge
may enter or cause to be entered the order for delivery of property after
an ex parte hearing and without notice to and the opportunity for a hear-
ing by the defendant, only if the judge is satisfied as to the probable
validity of the following allegations to be contained in plaintiff's affidavit
or verified petition:

      (1) Possession of the property by the plaintiff is directly necessary to
secure an important governmental or general public interest; and

      (2) there is a special need for very prompt action due to the imme-
diate danger that the defendant will destroy or conceal the property.

      Prior to the issuance of the order for delivery of the property, the
plaintiff shall file with the clerk of the court in which the action is brought
a bond in not less than double the amount of the value of the property
as stated in the affidavit or verified petition, or as found by the court at
the hearing on plaintiff's motion, with one or more sufficient sureties. It
shall be to the effect that plaintiff shall duly prosecute the action, and pay
all costs and damages that may be awarded against him or her the plaintiff,
and that if plaintiff is given possession of the property he or she the
plaintiff will return it to defendant if it be so adjudged. If the bond shall
be found to be sufficient, the clerk judge shall approve the same and note
his or her the judge's approval thereon. The defendant may challenge the
sufficiency of the bond as provided in subsection (b) of K.S.A. 60-705
and amendments thereto.

      (c) Property in custodia legis. If the property the possession of which
is sought is in the custody of an officer under any legal process, it shall
nevertheless be subject to replevin under this section, but if the same
such property is in the custody of any officer under any process issued
out of a judicial proceeding, the petition or affidavit and bond shall be
filed in the same proceeding out of which such process issued.

      (d) Order for delivery of property. The order for the delivery of the
property to the plaintiff shall be delivered to the appropriate officer of
any county in the state in which the property is located. The order shall
state the names of the parties, the description of the property and the
value as set out in plaintiff's affidavit or verified petition, or as found by
the court at the hearing on plaintiff's motion pursuant to subsection (b).
It shall command the appropriate officer to take immediate possession of
the property and deliver it to plaintiff at the expiration of twenty-four
(24) 24 hours unless there is compliance with the requirements of sub-
section (f) of this section and make return of the order on the day named
therein. If the officer to whom the order is delivered is a party defendant,
then the order shall be served upon him or her such officer by the clerk
of the court.

      (e) Return and execution of order. (1) Obtaining possession. In the
execution of the order the sheriff or marshal may break open any building
or enclosure in which the property is located, if he or she the sheriff or
marshal cannot otherwise obtain possession of the property or entrance
to the building on demand.

      (2) Execution. The sheriff or marshal shall execute the order by taking
possession of the property described therein, and serving a copy on the
person charged with the unlawful detainer in the same manner as for
personal or resident service if he or she such person can be found in the
county.

      (3) Return. The return day of the order of delivery shall be nine (9)
days after it is issued, if the order is executed within the county where
the court is situated. In all other cases, the return day shall be twenty
(20) 20 days after the order is issued.

      (f) Redelivery bond. The defendant, within twenty-four (24) 24 hours
after service of a copy of the order, may deliver to the sheriff or marshal
a bond to be approved by him or her the sheriff or marshal, in not less
than double the amount of the value of the property as stated in the order,
with one or more sufficient sureties, and the sheriff or marshal shall re-
turn the property to the defendant. The bond shall be to the effect that
the defendant will deliver the property to plaintiff if it be so adjudged,
and will pay all costs and damages that may be adjudged against him or
her the defendant. The sheriff or marshal shall file the bond with the clerk
after noting his or her the sheriff's or marshal's approval thereon. If the
defendant is a public officer, board or government agency, such officer,
board or agency, in lieu of giving a redelivery bond, may retain possession
of the property seized by filing with the clerk within the time required
for giving the redelivery bond a writing certifying that the public health,
safety or welfare would be jeopardized or impaired if the plaintiff ac-
quired possession of the property prior to final judgment, in which case
a hearing may be had on the issue of public interest at the instance of
any party.

      (g) Judgment in action. In an action to recover the possession of per-
sonal property, judgment for the plaintiff may be for possession or for
the recovery of possession, or the value thereof in case a delivery cannot
be had, and for damages for the detention. If the property has been
delivered to the plaintiff and the defendant claims a return thereof, judg-
ment for the defendant may be for a return of the property, or the value
thereof in case a return cannot be had, and damages for taking and with-
holding the same.

      Sec.  2.  Form No. 11, in the appendix of forms following K.S.A. 61-
2605, is hereby amended to read as follows:

 Form No. 11: GENERAL EXECUTION AND RETURN

(Caption of Case) WRIT OF EXECUTION  The State of Kansas to the Sheriff (Marshal) of ________  County:

    WHEREAS, on the ____  day of ________, 19__, in an action then pending in
this court, ______, plaintiff (or defendant), recovered judgment against

---

,

defendant (or plaintiff), for the sum of ______  dollars, and court costs, actual and es-
timated, in the sum of ______  dollars; that credits of ______  dollars have been
received; and that there remains due the sum of ______  dollars, together with your fees
for execution of this writ.

    NOW, THEREFORE, You are Hereby Commanded that of non-exempt personal prop-
erty of the said such judgment debtor, ________, you cause said such judgment and
costs to be satisfied, as provided by law. Make return of this execution showing the manner
in which you have executed the same, within thirty (30) 30 days from the time of your
receipt thereof.

Dated ________________

(Signature), Clerk Judge

 [Seal of the court]

SHERIFF'S (MARSHAL'S) RETURN     On ________, 19__, __  o'clock __M., received this writ.

    On ________, 19__, __  o'clock __M., levied on the non-exempt personal prop-
erty of ________, described in the following schedules.

    On ________, 19__, advertised the same for sale.

    On ________, 19__, sold the following items of personal property at prices in-
dicated, and the moneys received from said such sale are herewith delivered to the court.

	$	$	$
	$	$	$
Total received	$

    The following goods remain unsold ________  for want of bidders.

(Signature and Title of Officer)

 FEES

Levy under execution	$
Advertising property	$
Offering for sale or selling	$
Issuing certificates of sale	$
No property found	$
Mileage:   miles	$
Total	$

    Sec.  3.  Form No. 20, in the appendix of forms following K.S.A. 61-
2605, is hereby amended to read as follows:

 Form No. 20:  ORDER FOR DELIVERY OF PROPERTY IN REPLEVIN AND

                                                      RETURN

(Caption of Case) ORDER FOR DELIVERY OF PROPERTY  To the Sheriff (Marshal) of ________  County, Kansas:

    WHEREAS, the above-named plaintiff has commenced an action in this court against
the above-named defendant for the recovery of certain personal property and has filed his
or her the plaintiff's affidavit and bond, as required by law, to obtain an order for the
immediate delivery of said such personal property;

    You are therefore commanded to take immediate possession of the following described
personal property and deliver it to said such plaintiff at the expiration of twenty-four 24
hours unless prior to said such time you receive a redelivery bond from the defendant, with
one or more sufficient sureties, in not less than double the value of the property taken, as
provided by law. Which property is described and valued as follows: (State description and
value of each item claimed as alleged.)

    You shall also serve a copy of this order on the defendant in the same manner as the
service of summons and make your return within ________  days hereof.

(Signature), Clerk Judge

Dated ________________

 [Seal of the court]

RETURN ON ORDER (MANNER OF EXECUTION)

    On ________, 19__, at __  o'clock, __M., I received this order and executed
the same as follows:

    * (1) Property Taken Into Possession. On ________, 19__, I took into possession
the following articles of personal property, to wit:

---

---

.

    * (2) Property Delivered to Plaintiff. On ________, 19__, I delivered the above-
described property to the plaintiff.

    * (3) Redelivery Bond Received. On ________, 19__, I received from the de-
fendant, with ________  as sureties thereon, a bond in the amount of $______,
double the amount of the alleged value of the articles taken, and I returned the above-
described articles of personal property to the defendant. Said Such bond has been by me
determined to be sufficient and is herewith filed with the court.

    * (4) Property Not Found. I was unable to locate any of the articles of personal property
described in the order within this county.

    * (The officer should delete or omit those portions not applicable to the manner of exe-
cuting of this order.)

(MANNER OF SERVICE ON DEFENDANTS)

    I hereby certify that I served a copy of this order on the defendant at the time and in the
manner following, to wit:

---

  .
    I was unable to locate the following defendant ________  within this county.

(Signature), Sheriff

Dated: ________________

    Sec.  4.  Form No. 22, in the appendix of forms following K.S.A. 61-
2605, is hereby amended to read as follows:

 Form No. 22:  ORDER FOR POSSESSION OF PROPERTY AND FORECLOSURE
                                                      OF SECURED INTEREST AND RETURN

(Article 24) (Caption of Case) ORDER TO TAKE POSSESSION OF PERSONAL PROPERTY  To the Sheriff (Marshal) of ________  County, Kansas:

    WHEREAS, the above-named plaintiff has commenced an action in this court against
the above-named defendant for foreclosure of his or her the plaintiff's security interest in
certain personal property and has filed his or her the plaintiff's affidavit and bond, as re-
quired by law, to obtain an order that said such personal property be immediately taken
into your possession and kept by you until further order of the court;

    You are therefore commanded to take immediate possession of the following described
personal property and hold the same in your possession, unless prior to the expiration of
twenty-four 24 hours you receive a redelivery bond from the defendant, with one or more
sufficient sureties, in not less than double the value of the property taken, as provided by
law. The description and estimated value of each article you are to take into possession is
as follows: (State description and value of each item as alleged in the plaintiff's affidavit.)

    You shall also serve a copy of this order on the defendant in the same manner as the
service of summons and make your return within ______  days of the date hereof.

(Signature), Clerk Judge

Dated: ________________

 [Seal of the court]

RETURN ON ORDER (MANNER OF EXECUTION)     On ________, 19__, at __  o'clock, __M., I received this order and executed
the same as follows:

    * (1) Property Taken Into Possession. On ________, 19__, I took into possession
the following articles of personal property, to wit:

---

---

  .
    * (2) Property in Possession of Officer. The property listed and itemized above is held
in my possession subject to the further order of the court.

    * (3) Redelivery Bond Received. On ________, 19__, I received from the de-
fendant, with ________  as surety thereon, a bond in the amount of $______, double
the amount of the estimated value of the articles taken, and I returned the above-described
articles of personal property to the defendant. Said Such bond has been by me determined
to be sufficient and is herewith filed with the court.

    * (4) Property Not Found. I attempted to execute this order, but was unable to locate
any of the articles of personal property described in the order within this county.

    * (The officer should delete or omit those portions not applicable to the manner of exe-
cuting this order.)

(MANNER OF SERVICE ON DEFENDANTS)

    I hereby certify that I served a copy of this order on the defendant at the time and in the
manner following, to wit:

---

  .
    I was unable to locate the following defendant ________  within this county.

(Signature), Sheriff

Dated: ________________

    Sec.  5.  Form No. 23, in the appendix of forms following K.S.A. 61-
2605, is hereby amended to read as follows:

 Form No. 23:  EXECUTION ON FORECLOSURE OF SECURED INTEREST AND
                                                      RETURN

(Caption of Case) SPECIAL EXECUTION AND ORDER OF SALE  The State of Kansas to the Sheriff (Marshal) of ________  county:

    WHEREAS, on the ____  day of ________, 19__, in an action then pending in
this court ________, plaintiff, recovered judgment against ________, defendant,
for the sum of ________  dollars, and court costs, actual and estimated, in the sum of
______  dollars;

    AND WHEREAS, on the same day, this court granted judgment foreclosing the security
interest of the plaintiff and charging certain articles of personal property with the payment
of said such debt and costs and that if said such judgment be is not satisfied within ten 10
days from the date thereof, said such articles shall be sold, which articles of personal property
are described as follows, to wit:

---

  .
    Now, therefore, you are hereby commanded to cause the above-described articles of
personal property to be advertised and sold according to law and the proceeds of said such
sale to be delivered to the court to be disbursed as the court shall direct. You will make
return of this execution showing the manner in which you have executed the same, within
thirty 30 days from the time of your receipt thereof.

(Signature), Clerk Judge

Dated: ________________

 [Seal of the court]

SHERIFF'S (MARSHAL'S) RETURN  (The return on this execution should be similar to the return on the general execution,
Form No. 12.)

 Sec.  6. K.S.A. 61-2401 and Form No. 11, Form No. 20, Form No.
22 and Form No. 23, in the appendix of forms following K.S.A. 61-2605,
are hereby repealed.
 Sec.  7. This act shall take effect and be in force from and after Jan-
uary 1, 2000, and its publication in the statute book.

Approved April 1, 1999.
__________