N.M. Stat. § 42-8-7 (2026)

value of property or its return.]
    That if in any suit for replevin of property the plaintiff shall allege in his complaint a
demand upon the defendant for the return of the property and a reasonable opportunity
to comply therewith, and that he waives seizure and delivery thereof, the affidavit and
bond prescribed in Sections 42-8-5 and 42-8-6 NMSA 1978 need not be filed, nor the
writ issued. In such case, the verdict, if for the plaintiff, shall fix the value of the property,
as well as the damages for detention; upon which verdict plaintiff shall have judgment
for such damages, and either for the value of such property, as so fixed, or for the return
thereof, at his election.

History: 1941 Comp., § 25-1507a, enacted by Laws 1945, ch. 14, § 1; 1953 Comp., §
22-17-7.

                                       ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not
part of the law.

Court cannot augment or limit provisions of statute. — Provisions of replevin
statute for seizing the property under a writ of replevin cannot be dispensed with, limited
or augmented by rule of court. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149
P.2d 795 (decided under former law).

When suit dismissed, even though implied waiver of seizure. — Where there was
no showing that defendant had either actual or constructive possession of the guns at
the time of trial, the dismissal of the suit by the trial court was proper, even if there was
an implied waiver of seizure and delivery of the guns as provided in this section. Piner v.
Pender, 1972-NMSC-010, 83 N.M. 502, 494 P.2d 164.
Date of wrongful detention, date for fixing property value. — The time for fixing the
value of the property in case where plaintiff waived seizure and delivery of property and
asked for damages was the date of the wrongful detention. Valley Chevrolet Co. v.
Whitaker, 1966-NMSC-130, 76 N.M. 488, 416 P.2d 154.

Fair and reasonable basis for determination of value necessary. — Where the
evidence revealed the value of property plaintiff sought judgment for as of the date
defendant obtained possession, the value of the property when wrongfully detained one
week later could reasonably be inferred. A fair and reasonable basis for determination
of the value is all that is required. Valley Chevrolet Co. v. Whitaker, 1966-NMSC-130,
76 N.M. 488, 416 P.2d 154.

Slight departure in relief awarded, not ground for complaint. — In an action of
replevin, where plaintiff waived seizure, affidavit and bond, and the trial court found for
plaintiff, giving him an election whether to accept a return of the property subject to a
lien which defendants had established on the property or take judgment for the value
thereof, less the amount of the lien held by defendants, defendants could not complain
of the slight departure in relief awarded if it did not comply literally with a statutory
judgment in replevin. Ace Auto Co. v. Russell, 1955-NMSC-025, 59 N.M. 182, 281 P.2d
143.

Not separating actual value and damages, harmless error only. — Even though
under this statute the actual value of the property and damages should have been
separated, the error was harmless where, from an examination of the entire record, it
would appear that the judgment of the trial court granted substantial justice. Therefore, it
would be going too far to deprive a plaintiff of a recovery upon no better grounds than
the bare informality of a verdict. Hicks v. Maestas, 1962-NMSC-102, 70 N.M. 347, 373
P.2d 916.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Recovery of damages in replevin for
value of use of property detained, by successful party having only security interest as
conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Allowance of loss of profits from deprivation of use of detained property, 48 A.L.R.2d
1053.