Annotation I. General Consideration. Law reviews. For article, “Seizure of Person or Property: Rules 101-104 “, see 23 Rocky Mt. L. Rev. 603 (1951). Annotator’s note. Since this rule is similar to §§ 85 through 96 and § 247 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule. At common law replevin lay where there was an unlawful taking, and detinue where there was an unlawful detention. Denver Onyx & Marble Mfg. Co. v. Reynolds, 72 F. 464 (8th Cir. 1896). This rule superseded the common-law action. The remedy provided by this rule supersedes the common-law action of replevin, whether in the cepit or in the detinet, and all the ancient learning relating to these distinctions became obsolete upon the adoption of the rule. Denver Onyx & Marble Mfg. Co. v. Reynolds, 72 F. 464 (8th Cir. 1896). Purpose of prejudgment hearing. This rule clearly contemplates that the conflicting legal and equitable claims of the parties will be fully adjudicated in a trial on the merits. The prejudgment hearing serves the far narrower purpose of ensuring that a replevin defendant’s constitutionally guaranteed property rights will not be jeopardized by unduly summary claim and delivery proceedings. Jack Kent Cadillac, Inc. v. District Court, 198 Colo. 403, 601 P.2d 626 (1979); Metro Nat. Bank v. District Court, 676 P.2d 19 (Colo. 1984). Although a district court sits as a court of general jurisdiction in an action to replevy personal property, its powers are more limited where, in a prejudgment hearing on an order to show cause, the only issue to be decided is “which party, with reasonable probability, is entitled to possession, use, and disposition of the property pending final adjudication of the claims of the parties”. Jack Kent Cadillac, Inc. v. District Court, 198 Colo. 403, 601 P.2d 626 (1979). Order to show cause required for jurisdiction of possessory rights in property. A court conducting a hearing under this rule lacks jurisdiction unilaterally to affect possessory rights in any property not brought within its purview by a duly issued order to show cause. Jack Kent Cadillac, Inc. v. District Court, 198 Colo. 403, 601 P.2d 626 (1979). The only issue to be determined in an action in replevin is ownership and right of possession. Amarillo Auto Auction, Inc. v. Hutchinson, 135 Colo. 320, 310 P.2d 715 (1957). To maintain action, plaintiff’s right to the possession of the property must be exclusive. Hoeffer v. Agee, 9 Colo. App. 189, 47 P. 973 (1897). The vendee of an automobile under a conditional sales contract executed and valid in another state who has feloniously been deprived of possession of said automobile may recover the same from an innocent Colorado purchaser for value. Avis Rent-A-Car Sys. v. Woelfel, 155 Colo. 207, 393 P.2d 551 (1964). Replevin for an undivided interest in property cannot be maintained. Hoeffer v. Agee, 9 Colo. App. 189, 47 P. 973 (1897). Defendant must have actual or constructive possession. Appellant sought to recover from appellee-defendant the physical possession of a stock certificate upon allegation that he had purchased such shares from appellee, that such certificate had been delivered to him, that appellee had later surreptitiously regained possession and had continued to withhold possession of the stock notwithstanding demand. The undisputed evidence indicated that appellee had neither actual nor constructive possession of the subject stock certificate at the time the action was commenced, a prerequisite in an action in the nature of replevin. Brennan v. Sellers, 357 F.2d 150 (10th Cir.), cert. denied, 385 U.S. 828, 87 S. Ct. 61, 17 L. Ed. 2d 64, reh’g denied, 385 U.S. 984, 87 S. Ct. 531, 17 L. Ed. 2d 445 (1966). Plaintiff may recover damages for taking of property or judgment for its value. Under this rule the action for the recovery of personal property lies, by one entitled to the possession, against one wrongfully holding the possession, whether the possession was acquired in good or bad faith. In the action, the plaintiff may, if he maintained his suit, recover damages for the taking or detention of the property, and, if the property cannot be returned, judgment for its value. Denver Onyx & Marble Mfg. Co. v. Reynolds, 72 F. 464 (8th Cir. 1896); Roblek v. Horst, 147 Colo. 55, 362 P.2d 869 (1961). Adjustment of equities not authorized by jurisdiction over property and parties. Jurisdiction over the parties and the subject matter does not authorize the trial court to enter whatever remedial orders it deems necessary to adjust the equities between the parties. Jack Kent Cadillac, Inc. v. District Court, 198 Colo. 403, 601 P.2d 626 (1979). Since court had jurisdiction over the subject matter and over the person in a replevin action, and the person did not avail himself of opportunity to contest replevin action in that court but instead filed alternative actions in other courts and such other courts refused to disturb the replevin order, such person waived his right to contest the validity of the order in the replevin action in a subsequent action. Flickinger v. Ninth District Prod. Credit, 824 P.2d 19 (Colo. App. 1991). Restrictions of Governmental Immunity Act apply to replevin action for car seized by police. Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo. 1992). II. Pleading: Complaint and Affidavit. Commencement of action. No writ of replevin may be issued under this rule until an action in claim and delivery is commenced by the filing of a complaint which alleges the right of the plaintiff to the possession of personal property, and claims the delivery thereof. Gentry v. United States, 101 F. 51 (8th Cir. 1900). Facts alleged in counterclaim and demand for return of all certificates held by plaintiff bank constitute a claim for replevin. Together with a “verified complaint for replevin” incorporating the answer, counterclaim, cross-claim, and third-party complaint, and sworn to by the defendant, the requirements of section (e) of this rule are met. Metro Nat. Bank v. District Court, 676 P.2d 19 (Colo. 1984). The complaint must allege ownership. In an action to recover possession of personal property, the complaint must allege ownership, either general or special, otherwise the complaint will be bad on demurrer. Baker v. Cordwell, 6 Colo. 199 (1882); Reavis v. Stockel, 120 Colo. 82, 208 P.2d 94 (1949). Plaintiff has the burden of affirmatively establishing his own title and right of immediate possession to the property in question. Bill Dreiling Motor Co. v. St. Paul Fire & Marine Ins., 28 Colo. App. 318, 472 P.2d 153 (1970). Complaint may be amended to conform to proof concerning ownership of property. In an action in replevin, in the disclosed circumstances, it is held that there was no abuse of discretion on the part of the trial court in permitting the plaintiff to amend its complaint to conform to the proof concerning ownership of certain of the property involved. Thomas v. First Nat’l Bank, 97 Colo. 474, 51 P.2d 589 (1935). Defective affidavit. If affidavit is defective, the appellant is not in a condition to avail himself of any defects. Conly v. Friedman, 6 Colo. App. 160, 40 P. 348 (1895). Allegations of value are binding on plaintiff. In a replevin action, allegations of the value of the property in the affidavit and sworn complaint are binding on plaintiffs. Startzell v. Bowers, 88 Colo. 135, 292 P. 601 (1930). Where the seizure was wrongful, demand prior to the commencement of suit is unnecessary. Bartels v. Arms, 3 Colo. 72 (1876); Smith v. Jensen, 13 Colo. 213, 22 P. 434 (1889); Farncomb v. Stern, 18 Colo. 279, 32 P. 612 (1893). Demand is only required when it is necessary to terminate the defendants’ right of possession or to confer that right on the plaintiff. Lamping v. Keenan, 9 Colo. 390, 12 P. 434 (1884). The only reason why demand is necessary in any case, is to give the defendant an opportunity to surrender without being put to costs; and while this is eminently proper, the object of the rule is fully accomplished, and the plaintiff sufficiently punished for his neglect by judgment against him for costs, without being compelled to surrender his goods. Denver Live Stock Comm’n Co. v. Parks, 41 Colo. 164, 91 P. 1110 (1907). No proof of demand is necessary where the defendant claims ownership and right of possession. Hennessey v. Barnett, 12 Colo. App. 254, 55 P. 197 (1898); Denver Live Stock Comm’n Co. v. Parks, 41 Colo. 164, 91 P. 1110 (1907); Scott v. Bohe, 81 Colo. 454, 256 P. 315 (1927). Nor where it is clear that it would have been unavailing. Scott v. Bohe, 81 Colo. 454, 256 P. 315 (1927). A demand made after the beginning of the action but prior to the execution of the writ is sufficient. Denver Live Stock Comm’n Co. v. Parks, 41 Colo. 164, 91 P. 1110 (1907). In replevin, fraud need not be specially pleaded. Sopris v. Truax, 1 Colo. 89 (1868). Upon a general denial a defendant may show absolute title in himself or a third party but not a special property. Mason Tire Sales Co. v. Mason Tire & Rubber Co., 73 Colo. 42, 213 P. 117 (1923). A party from whom personal property has been taken pursuant to a replevin order is entitled, upon voluntary dismissal of the action by the opposing party, to return of the property or its value unless the opposing party can establish its right to retain possession of the property. The burden of establishing the right to the property should remain on the party who initially obtained the replevin order. Where no trial is held, a plaintiff should not be permitted simply to retain the property without making a showing to establish its right to possession and without affording the defendant an opportunity to demonstrate that the property was wrongfully taken. Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000). III. Bond. A defendant in a replevin action can recover from the surety, on the latter’s bond, damages he has incurred as a result of the seizing of the property in his possession, without the requirement of showing an original judgment in his favor for the return of the property or in the alternative for damages in the event return is not possible. Denver Truck Exch., Inc. v. Globe Indem. Co., 162 Colo. 398, 426 P.2d 772 (1967). The property must be returned in like good order and condition as when replevied. Trindle v. Register Printing & Publ’g Co., 58 Colo. 81, 143 P. 282 (1914). A verdict for the plaintiff fixing the total value of the goods, not valuing any item separately, is conclusive upon the defendant, and his surety in the redelivery bond. Trindle v. Register Printing & Publ’g Co., 58 Colo. 81, 143 P. 282 (1914). Bond covers only claims of possession and loss thereof. The language in section (e), “any sum that may from any cause be recovered”, viewed in context, does not apply to claims unrelated to possession or the loss of the property at issue. White v. Jackson, 41 Colo. App. 433, 586 P.2d 243 (1978). A defendant in a replevin action under this rule is entitled to recover from the surety whatever damages he has incurred as a result of the seizing of property in his possession; however, where he has lost his lien and the owner becomes entitled to possession, he suffers no damages as a result of the replevin. White v. Jackson, 41 Colo. App. 433, 586 P.2d 243 (1978). IV. Judgment. Judgment to be for return of entire property when in the hands of the other party. Horn v. Citizens Sav. & Com. Bank, 8 Colo. App. 535, 46 P. 838 (1896); Jones v. Messenger, 40 Colo. 37, 90 P. 64 (1907); Duffy v. Wilson, 44 Colo. 340, 98 P. 826 (1908). If possession cannot be had, judgment is for full value of property. Tucker v. Parks, 7 Colo. 62, 1 P. 427 (1883); Horn v. Citizens Sav. & Com. Bank, 8 Colo. App. 535, 46 P. 838 (1896); Jones v. Messenger, 40 Colo. 37, 90 P. 64 (1907); Duffy v. Wilson, 44 Colo. 340, 98 P. 826 (1908). It is unimportant that the thing to be recovered cannot be identified. It is suggested that replevin will not lie for the sheep, because they cannot be identified. That is unimportant under this rule. If replevin will not lie, trover will, and under this rule, action for possession, with the alternative recovery of the property or the value thereof in such a case as this, is equivalent practically to the two together. The plaintiff states the ultimate facts and has such judgment as they justify. If the chattels cannot be delivered, their value must be paid, and the judgments in that respect are right. To hold otherwise would be to revert to the common-law forms of action now happily abolished. Clay, Robinson & Co. v. Martinez, 74 Colo. 10, 218 P. 903 (1923). Defendant cannot complain of a judgment for the return of the property only. A judgment for the plaintiff, in an action of replevin should be in the alternative for the possession of the property, or the value thereof in case a delivery cannot be had; but, since this is for the protection of the plaintiff, the defendant cannot complain of a judgment for the return of the property only. Copeland v. Kilpatrick, 38 Colo. 208, 88 P. 472 (1906). A judgment must be for the possession of the entire property to be operative. Jones v. Messenger, 40 Colo. 37, 90 P. 64 (1907); Duffy v. Wilson, 44 Colo. 340, 98 P. 826 (1908). Value of property is basis for judgment. Only on evidence as to the value of property taken in replevin is there basis for judgment. Viles v. Jackson, 105 Colo. 68, 94 P.2d 1085 (1939). Rule is satisfied by a finding of the total aggregate value of all the chattels wrongfully withheld. Stevenson v. Lord, 15 Colo. 131, 25 P. 313 (1890); Copeland v. Kilpatrick, 38 Colo. 208, 88 P. 472 (1906). There is no need that the judgment should declare the separate value of each item of the recovery. Copeland v. Kilpatrick, 38 Colo. 208, 88 P. 472 (1906); Duffy v. Wilson, 44 Colo. 340, 98 P. 826 (1908). A judgment in the alternative is not required where it would be useless. Where the goods in question have been consumed by defendant and therefore cannot possibly be delivered, it is proper to accept a finding of guilty, assessing the value. To require an alternative judgment would be a useless formality. Barnard v. Corlett, 62 Colo. 226, 161 P. 156 (1916); Denver Truck Exch., Inc. v. Globe Indem. Co., 162 Colo. 398, 426 P.2d 772 (1967). Proof of facts under allegations determines relief. In a proper case the court may award a money judgment, without its being in the alternative, even though technically it was designated an action in replevin. Melnick v. Bowman, 102 Colo. 384, 79 P.2d 368 (1938). Return and damages must be claimed in the answer. To authorize a judgment in a replevin suit, for the return of the property to the defendant or for its value, or for damage for its detention, the return and the damages must be claimed in the answer. And where the answer did not claim a return of the property or damage for its detention a judgment for its return and for damages for its detention was unwarranted and must be regarded as void. Gallup v. Wortmann, 11 Colo. App. 308, 53 P. 247 (1898). Measure of damages. When neither fraud, malice, or wilful wrong in the taking or detention of the goods is alleged, the measure of damages is the value of the goods at the time of the taking or illegal detention. Barnard v. Corlett, 62 Colo. 226, 161 P. 156 (1916). Damages for unlawful taking and detention. A party to a replevin action who is ultimately adjudged to have the right to possession is also entitled to damages for the unlawful taking and detention of the chattel. Roblek v. Horst, 147 Colo. 55, 362 P.2d 869 (1961). Damages cannot be defeated by mere misnomer or bad form. While defendant’s demands (other than for return of the property) are denominated “further answer”, “cross complaint”, and “separate and further cause of action”, all are in fact for damages for wrongful taking and detention, recoverable under this section. They are not to be defeated by mere misnomer or bad form. Ellison v. Young, 71 Colo. 385, 206 P. 802 (1922). Part of judgment awarding damages for indebtedness and attorney fees held void. In an action in replevin to secure possession of mortgaged property because of default in payment of the secured indebtedness, a judgment, insofar as it awards the property to plaintiff and for costs, may be valid, but void as to that part purporting to award damages for the indebtedness and for attorney fees. French v. Commercial Credit Co., 99 Colo. 447, 64 P.2d 127 (1936). Judgment must be limited to ascertainment of whether there was any indebtedness. In an action in replevin by the holder of a chattel mortgage to obtain possession of the mortgaged property because the debtor was in default in payment of the secured note, the court has no jurisdiction to try the issue of indebtedness except to the point of ascertaining whether there was any indebtedness at all, and its judgment must be so limited. French v. Commercial Credit Co., 99 Colo. 447, 64 P.2d 127 (1936). The amount of the judgment recovered by defendant is conclusive in a subsequent suit upon the replevin bond. Cantril v. Babcock, 11 Colo. 143, 17 P. 296 (1887); Denver Truck Exch., Inc. v. Globe Indem. Co., 162 Colo. 398, 426 P.2d 772 (1967). Unauthorized use by bailee gives bailor the right of immediate possession. A use of the chattel of the bailee in a manner unauthorized by the contract of bailment gives the bailor the right of immediate possession, and he may maintain trover or replevin. Clay, Robinson & Co. v. Martinez, 74 Colo. 10, 218 P. 903 (1923).

For provisions prohibiting replevin prior to judgment in certain cases under the “Uniform Consumer Credit Code”, see § 5-5-105 , C.R.S.