Rule 64.Replevin

Reporter’s Notes—2024 Amendment: Rule 64(b)(1) is amended to delete an obsolete reference to a District Judge. Rule 64(b)(2), Rule 64(b)(3) and Rule 64(i) are amended to delete an obsolete requirement of a finding “that the amount of the valuation is within the jurisdiction of the superior court.” The superior court has no monetary jurisdictional limit.

Reporter’s Notes—2018 Amendment: Rule 64(b)(2) is amended to extend its 5-day time period to 7 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes—1989 Amendment: Two amendments are made to Rule 64. One amendment, to subdivision (b)(2), is made to provide greater flexibility in granting writs of replevin on short notice to the defendant. As formerly written, the writ could be issued ex parte or upon five days’ notice. One, two, three or four days’ notice was not authorized even if exigent circumstances made five days’ notice impossible—and forced plaintiff to obtain the order ex parte. The new wording states that the writ may be granted after five days’ notice “or on such shorter notice as the judge may prescribe for good cause shown.” The identical problem in V.R.C.P. 4.1 (attachments) is remedied with identical wording by a contemporaneous amendment to that rule. Subdivision (b)(4) is added to provide the authority for the court to accept a personal bond in a replevin action, without surety. The statute, 12 V.S.A. § 5373, requires “sufficient surety to be approved by the court.” See Vermont Constitution, Ch. II, § 37. The purpose behind the amendment is to conform procedures under Rule 64 more closely to those under Rule 65, in which the requirement of security may be waived altogether by the court. See V.R.C.P. 65(c). Because of the importance of the bond to the operation of Rule 64 as a whole, see V.R.C.P. 64(b)(1)-(3) and 12 V.S.A. §§ 5373, 5403, and because the statutory requirement of security has been deleted in injunction actions but not in replevin actions, see 12 V.S.A. §§ 4311-4328 (repealed by Act No. 185, § 237, of the Laws of 1971, Adj. Sess.), the rule continues to require a bond but allows the bond to be submitted without surety. The cost of a surety to plaintiff may be prohibitive and unfair to plaintiffs of modest means.

Reporter’s Notes—1973 Amendment: The amendments to this rule are similar in effect to and are adopted for the same purpose as those made to Rule 4.1. See Reporter’s Notes to Rule 4.1. Accordingly, wherever possible, amended Rule 64 incorporates or adapts provisions of Rule 4.1. The Reporter’s Notes to that rule explain the purpose and operation of provisions of Rule 64 not discussed in this note. Under amended Rule 64(b), notice and hearing are required for the issuance of any writ of replevin, with limited exceptions. If those exceptions do not apply, the procedure for such notice and hearing is nearly identical to that provided for issuance of an order of approval for nonpossessory attachment under Rule 4.1(b)(3). In amended Rule 64(b)(2), however, the court must find both that there is a reasonable likelihood that plaintiff will prevail on the merits and that the requirements for the replevin bond, carried over from prior Rule 64 have been met. The exceptions to the notice and hearing requirement, which appear in amended Rule 64(b)(3), are similar to those for attachment found in Rule 4.1(b)(4). If the court finds that one of those exceptions is present, it may order replevin ex parte. The only difference with the procedure for attachment is that no certificate of insurance is required, there being no monetary recovery in question. Amended Rule 64(d) provides different methods of service, according to whether the attachment is ordered upon notice and hearing or ex parte. See Reporter’s Notes to Rule 4.1(d). Amended Rule 64(i) provides an expeditious procedure for a defendant whose property has been taken on ex parte order to move for its return. Like Rule 4.1(e), it is derived from the provisions of Rule 65(a) for a motion to dissolve a temporary restraining order. The rule does not supersede existing provisions of law for return of property or other disposition of proceedings in replevin, which may still be used, whether the replevin order was issued on notice and hearing or ex parte. See 12 V.S.A. §§ 5331-5401.

Reporter’s Notes: This rule is similar to Maine Rule 64. See also Rhode Island Rule 64. The rule does not follow Federal Rule 64, which deals with the use of state ancillary remedies in federal court and is thus obviously inapplicable to state practice. Rule 64(a) incorporates by reference the bulk of the statutory replevin procedure, 12 V.S.A. §§ 5321-5405. Note that 12 V.S.A. §§ 5301-5305, providing for replevin of attached goods would be repealed by pending legislation (1971-H. 326, § 226), because they are merely an ancillary device for obtaining the return of attached goods on bond. See Green v. Holden, 35 Vt. 315 (1862). The simpler method for lifting an attachment by discharge or dissolution on bond or other terms provided by Rule 4.1(e) should, in any event, be deemed to have superseded the replevin procedure. Rule 64(b) supersedes the provisions of 12 V.S.A. § 5371 for issuance of writs by a justice of the peace or District Judge as of course. The rule requires a hearing before a District or Superior Judge and a finding that there is probable ground for plaintiff’s claim before issuance of the writ by the clerk of the court in the county where the goods are located. This procedure, like that provided for writs of attachment and trustee process under Rules 4.1(b), 4.2(b), is intended to make applicable to replevin the principles expressed in Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337 (1969). See Reporter’s Notes to Rule 4.1. Replevin, like attachment and trustee process, involves at least the temporary deprivation of property, which, whether by constitutional mandate or as a matter of policy, should not be permitted without a showing that a more than frivolous claim is involved. See Laprease v. Raymours Furniture Co., 315 F. Supp. 716 (N.D.N.Y.1970) (New York replevin statute violates due process). Rule 64(b) also requires a finding that the bond given by plaintiff in accordance with 12 V.S.A. § 5373 is based on an adequate valuation of the goods and one within the jurisdiction of the County Court. This procedure replaces the more cumbersome provision of former 12 V.S.A. § 5374 (now superseded) for valuation by three disinterested persons appointed by the officer serving the writ. If the valuation does not satisfy the jurisdictional amount, issuance of the writ should be denied. Under prior practice, the writ was returnable to whatever court had jurisdiction on the basis of the valuation. See 12 V.S.A. § 5372 (now superseded). Rules 64(c) and (d) are similar to the basic provisions of the rules for pleading and service of process, with the addition, in subdivision (c), of special requirements of particularity in pleading and with the further difference that the writ of replevin, like the writ of attachment, is a separate document in the nature of an order to the sheriff to replevy the goods. See Rule 4.1. After securing the goods, the officer is to serve upon the defendant the writ and return with an ordinary summons and complaint. Subdivisions (c) and (d) take account also of the special venue and bonding requirements of the replevin action. See 12 V.S.A. §§ 5331, 5373. A form of writ appears as Official Form 14 in the Appendix of Forms. Rules 64(c) and (d) are essentially comparable to and consistent with prior Vermont statutory procedure, given the necessity for accommodation with other provisions of the rules. See 12 V.S.A. §§ 5331, 5371-5375. Note, however, that in Vermont there was previously no statutory or case-law requirement of particularity in description and valuation of the goods such as is laid down by Rule 64(c). See 12 V.S.A. § 5374 (now superseded). Particularity in description is an obvious practical necessity to assist the officer in securing the right goods. The requirement for an allegation of value implements the valuation provision of Rule 64(b). The requirement of Rule 64(d) that goods be replevied within 30 days after the filing of complaint is similar to the time periods applicable to attachment and trustee process. See Rules 4.1(d), 4.2(d). The time is subject to enlargement under Rule 6(b). Rule 64(e) imposes special pleading requirements as to demand and refusal and title when those matters are in issue. Title in the plaintiff and a demand and refusal where defendant has detained goods lawfully in his possession are both elements of the action in Vermont, although there was no specific prior authority requiring that they be pleaded. See Ravine House Co. v. Bradstreet, 102 Vt. 370, 148 A. 481 (1930); Town of Grand Isle v. McGowan, 88 Vt. 140, 92 A. 6 (1914); cf. Cameron v. Blanchard, 107 Vt. 51, 176 A. 290 (1935). Rule 64(f) puts in form appropriate to the rules the prior requirement of an answer on the part of the defendant. See Murphy v. Punt, 107 Vt. 421, 180 A. 886 (1935). While the requirement that defendant affirmatively plead title goes beyond older Vermont authority holding that a plea of not guilty put the ownership of the goods in issue, Zeno v. Mason, 90 Vt. 173, 97 A. 355 (1916), the rule is consistent with the provision of Rule 8(c) regarding affirmative defenses. See Reporter’s Notes to Rule 8(c). Rule 64(g) modifies the rules pertaining to counterclaims, cross-claims, and third-party claims by limiting replevin on such claims to situations where the goods are located in the county where the original action is pending. Such a provision is necessary because of the statutory restriction of venue in actions of replevin to the county where the goods are located. 12 V.S.A. § 5331. In particular, this rule means that a counterclaim in replevin is not compulsory if the goods are located in another county. Rule 64(h) preserves the right to a separate action in equitable replevin, which lies when goods cannot be replevied by ordinary legal process. See Farnsworth v. Whiting, 104 Me. 488, 72 A. 314 (1908) (securities in safety deposit box). While no Vermont cases in which the remedy was asserted have been found, presumably equitable replevin, resting as it does on general principles of equity, is available in the state in a proper case. For analogous cases, see Woods v. Scott, 14 Vt. 518 (1842); Waterman v. Cochran, 12 Vt. 699 (1839); Bigelow v. Congregational Soc. of Middletown, 11 Vt. 283 (1839).