4:59-1. Execution
(a) In General. Process to enforce a judgment or order for the payment of money and process to collect costs allowed by a judgment or order, shall be a writ of execution, except if the court otherwise orders or if in the case of a capias ad satisfaciendum the law otherwise provides. The amount of the debt, damages and costs actually due and to be raised by the writ, together with interest from the date of the judgment, shall be endorsed thereon by the party at whose instance it shall be issued before its delivery to the sheriff or other officer. Unless the court otherwise orders, every writ of execution shall be directed to a sheriff and shall be returnable within 24 months after the date of its issuance, except that in case of a sale, the sheriff shall make return of the writ and pay to the clerk any remaining surplus within 30 days after the sale, and except that a capias ad satisfaciendum shall be returnable not less than 8 and not more than 15 days after the date it is issued. One writ of execution may issue upon one or more judgments or orders in the same cause. The writ may be issued either by the court or the clerk thereof.
(b) Execution to Enforce a Court Order for the Support of Dependents. Income withholding to enforce a judgment or order for the periodic payment of alimony or child support shall be governed by R. 5:7-5(b), (c) and (d). The Presiding Judge of the Family Division in each vicinage may issue a standing or special order authorizing the Probation Division to execute on cash or cash-equivalent assets, as defined herein, to collect child support or alimony judgments payable through the Probation Division, and directing that writs of execution to collect past-due child support or alimony be served on the holder of such assets by the Probation Division. In vicinages where such an order is issued, an execution to enforce an alimony or child support judgment against cash or cash-equivalent assets shall be governed by R. 5:7-5(e) and the Vicinage Chief Probation Officer shall be designated Deputy Clerk of the Superior Court for the limited purpose of certifying writs of execution for alimony or child support judgments payable through the Probation Division. Cash or cash-equivalent assets include bank accounts, retirement accounts, trusts, insurance proceeds, net monetary awards and settlements from civil lawsuits, non-court settlements, proceeds from estates, investments, commissions, bonuses and any other asset from which funds are readily available without the need for seizure, inventory or public sale.
(c) Execution First Made Out of Property of Party Primarily Liable. If a writ of execution is issued against several parties, some liable after the others, the court before or after the levy may, on application of any of them and on notice to the others and the execution creditor, direct the sheriff or other officer that, after levying upon the property liable to execution, he or she raise the money, if possible, out of the property of the parties in a designated sequence.
(d) Wage Executions; Notice, Order, Hearing. Proceedings for the issuance of an execution against the wages, debts, earnings, salary, income from trust funds or profits of a judgment debtor shall be on notice to the debtor. The notice of wage execution shall state (1) that the application will be made for an order directing a wage execution to be served upon the defendant's named employer, (2) the limitations prescribed by 15 U.S.C.A. §§ 1671-1677, inclusive and N.J.S. 2A:17-50 et seq. and N.J.S. 2A:17-57 et seq. on the amount of defendant's salary which may be levied upon, (3) that defendant may notify the court and the plaintiff in writing within 10 days after service of the notice of reasons why the order should not be entered, and (4) if defendant so notifies the clerk, the application will be set down for hearing of which the parties will receive notice as to time and place, and if defendant fails to give such notice, the order will be entered as of course. The judgment creditor may waive in writing the right to appear at the hearing on the objection and rely on the papers. The notice of wage execution shall be served on the judgment debtor in accordance with R. 1:5-2. A copy of the notice of application for wage execution, together with proof of service in accordance with R. 1:5-3, shall be filed with the clerk at the time the form of order for wage execution is submitted. No order shall be entered unless the form of order was filed within 45 days of service of the notice or 30 days of the date of the hearing. If an objection from the judgment debtor is received by the clerk after a wage execution has issued, all moneys remitted by the employer shall be held until further order of the court and the matter shall be set down for a hearing to be held within 7 days of receipt of the objection.
(e) Supplementary Proceedings. In aid of the judgment or execution, the judgment creditor or successor in interest appearing of record, may examine any person, including the judgment debtor, by proceeding as provided by these rules for the taking of depositions or the judgment creditor may proceed as provided by R. 6:7-2, except that service of an order for discovery or an information subpoena shall be made as prescribed by R. 1:5-2 for service on a party. The court may make any appropriate order in aid of execution. If the warrant for arrest is not executed within 24 months after the date of the entry of the order authorizing it, both the order and the warrant shall be deemed to have expired and to be of no further effect.
(f) Sheriff's Costs. The sheriff shall file a bill of taxed costs with the clerk of the court from which execution issued within 20 days after the date of the sale.
(g) Notice to Debtor. Every court officer or other person levying on a debtor's property shall, on the day the levy is made, mail a notice to the person whose assets are to be levied on stating that a levy has been made and describing exemptions from levy and how such exemptions may be claimed. The notice shall be in the form prescribed by Appendix VI to these rules and copies thereof shall be promptly filed by the levying officer with the clerk of the court and mailed to the person who requested the levy. If the clerk or the court receives a claim of exemption, whether formal or informal, it shall hold a hearing thereon within 7 days after the claim is made. If an exemption claim is made to the levying officer, it shall be forthwith forwarded to the clerk of the court and no further action shall be taken with respect to the levy pending the outcome of the exemption hearing. No turnover of funds or sale of assets may be made, in any case, until 20 days after the date of the levy and the court has received a copy of the properly completed notice to debtor.
Note: Source-R.R. 4:74-1, 4:74-2, 4:74-3, 4:74-4. Paragraph (c) amended November 17, 1970 effective immediately; paragraph (d) amended July 17, 1975 to be effective September 8, 1975; paragraph (a) amended, new paragraph (b) adopted and former paragraphs (b), (c), (d), and (e) redesignated (c), (d), (e) and (f) respectively, July 24, 1978 to be effective September 11, 1978; paragraph (b) amended July 21, 1980 to be effective September 8, 1980; paragraphs (a)and (b) amended July 15, 1982 to be effective September 13, 1982; paragraph (d) amended July 22, 1983 to be effective September 12, 1983; paragraph (b) amended and paragraph (g) adopted November 1, 1985 to be effective January 2, 1986; paragraph (d) amended June 29, 1990 to be effective September 4, 1990; paragraph (e) amended July 14, 1992 to be effective September 1, 1992; paragraphs (a), (c), (e), (f), and (g) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended June 28, 1996 to be effective June 28, 1996; paragraph (d) amended June 28, 1996 to be effective September 1, 1996; paragraph (e) amended July 10, 1998 to be effective September 1, 1998; paragraphs (a), (e), and (g) amended July 5, 2000 to be effective September 5, 2000; paragraph (d) amended July 12, 2002 to be effective September 3, 2002.
4:59-2. Judgment for Specific Acts; Writ of Possession
(a) Judgment for Specific Acts. If a judgment or order directs a party to perform a specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of such defaulting party by some other person appointed by the court, and the act when so done shall have like effect as if done by the defaulting party.
(b) Order and Writ of Possession. Where a party by virtue of any judgment or order, or any writ, sale or proceeding thereunder, claims possession of property, but the judgment or order does not provide therefor, the court on motion may make an order for the possession, provided notice of the motion is given to the person in possession and proof is made that such person has failed to deliver possession 10 days after a written demand. If an order or judgment is for the possession of real or personal property, the party in whose favor it is entered is, on application to the clerk, entitled as of course to a writ of possession directed to the sheriff, which may include an execution for costs.
Note: Source-R.R. 4:75-1, 4:75-2; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
4:59-3. Process in Behalf of and Against Persons Not Parties
An order made in favor of a person who is not a party to the action may be enforced by the same process as in the case of a party and, if obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as a party.
Note: Source-R.R. 4:76; amended July 13, 1994 to be effective September 1, 1994.
RULE 4:60. ATTACHMENT AND SEQUESTRATION
4:60-1. Definitions
As used in R. 4:60, "plaintiff" includes any party asserting a claim in a complaint, counterclaim, cross-claim, third-party complaint or any other pleading, upon whose application a writ of attachment is issued. "Defendant" includes any party against whom any such claim is asserted. "Applying claimant" includes any person having a claim against the defendant who shall have been admitted as a party by court order.
Note: Source-R.R. 4:77-1.
4:60-2. Commencement of Action; Venue
An action in which a writ of attachment is sought shall be commenced by filing a complaint. Venue in such an action in the Superior Court shall be governed by R. 4:3-2, except that if no mandatory provision thereof is applicable, venue shall be laid in any county in which any of the real or personal property to be attached is situated.
Note: Source-R.R. 4:77-3, 4:77-4.
4:60-3. Attachment and Summons
A writ of attachment may be issued as initial or sole process in the action or as additional process pursuant to R. 4:60-5. A summons against the same defendant and additional summonses against other defendants may issue in the same action before or after issuance of the writ. If a summons or writ of attachment is not issued within 10 days after the filing of the complaint, the action may be dismissed as provided by R. 4:37-2(a).
Note: Source-R.R. 4:77-5; amended July 24, 1978 to be effective September 11, 1978.
4:60-4. Attachment and Arrest
No writ of attachment shall issue against a defendant who has been arrested upon a writ of capias ad respondendum or ne exeat in the same action, and no order to hold to bail shall be made as to a defendant whose property shall have been attached under a writ issued in the same action, unless the court shall determine upon proof, with or without notice to the defendant, that the second writ is not oppressive and is required in the interest of justice under the special circumstances of the case. If the second writ is issued without notice, the order therefor shall provide that defendant may move to vacate it on not more than 2 days' notice to the plaintiff.
Note: Source-R.R. 4:77-6.
4:60-5. Order Directing Issuance of Writ
(a) Issuance of Writ on Notice. A writ of attachment shall issue only in cases where the defendant is subject to the exercise of jurisdiction by the State consistent with due process of law. The writ shall issue upon court order on the plaintiff's motion. Except as otherwise provided by paragraph (b) of this rule, the motion shall be heard on no less than three days' notice to the defendant, who shall file and serve any opposing affidavits or cross-motions at least one day prior to the hearing. The motion shall be granted only upon the court's finding, based on the moving papers, any opposing affidavits which may have been filed, and any testimony taken pursuant to R. 1:6-6, that (1) there is a probability that final judgment will be rendered in favor of the plaintiff; (2) there are statutory grounds for issuance of the writ; and (3) there is real or personal property of the defendant at a specific location within this State which is subject to attachment.
(b) Issuance of Writ Ex Parte. An order for issuance of writ of attachment without notice to the defendant may be entered by the court only if the defendant is about to abscond or if the court finds from specific facts shown by affidavit or verified complaint that the giving of such notice is likely to defeat the execution of the writ.
(c) Contents of Order. Upon satisfactory proof of plaintiff's right to the writ, the court by order shall direct the issuance of the writ fixing the amount or value of property to be attached, and providing the manner in which notice of the attachment shall be given to the defendant, and such terms and conditions as the court deems appropriate.
(d) Bond by Plaintiff. Before or after issuance of the writ, the court may, in its discretion, order the plaintiff to post a bond with sufficient sureties and in an amount sufficient to indemnify defendant for all damages resulting from the attachment and for taxed costs, if the writ is vacated, or if the action is dismissed, or if judgment therein is given for defendant.
Note: Source-R.R. 4:77-7(a) (b), 4:77-8(a) (b), 4:77-9. Paragraphs (a) and (b) deleted and new paragraphs (a) and (b) adopted June 29, 1973 to be effective September 10, 1973; paragraph (a) amended July 24, 1978 to be effective September 11, 1978.
4:60-6. Issuance of Writ; Further Writs
(a) Issuance by Clerk of the Superior Court. Upon the filing with the court of the complaint, affidavits, order, and bond, if any is required, either the court or the clerk thereof shall issue a writ, in duplicate, which shall be addressed to the sheriff of the county in which the property to be attached is located or found, or in Superior Court actions where the property to be attached is located in more than one county, a writ shall issue to the sheriff of each such county.
(b) Issuance by Deputy Clerk. In Superior Court actions, the court in its discretion may mark the papers filed and order the issuance of the writ forthwith by the deputy clerk of the Superior Court of a county in which any property to be attached is located, who shall issue the writ and forward a copy thereof to the office of the Superior Court Clerk in Trenton on the same day. The Clerk of the Superior Court shall enter the writ in the Civil Judgment and Order Docket.
(c) Further Writs. Further writs may be issued prior to judgment on further affidavit and order.
Note: Source-R.R. 4:77-10(a) (b) (c), 4:77-11, 5:2-2; paragraph (b) amended June 28, 1996 to be effective September 1, 1996.
4:60-7. Levy
The sheriff shall make the levy within 30 days from the date of the writ, in the following manner:
(a) In the case of tangible personal property in the possession of a bailee for which a negotiable document of title is outstanding, by complying with the provisions of N.J.S. 12A:7-602, and serving a certified copy of the writ upon the bailee.
(b) In the case of tangible personal property other than personal property referred to in paragraph (a) of this rule, by taking the same into custody or by serving a certified copy of the writ upon the person holding the same.
(c) In the case of choses in action evidenced by negotiable commercial paper, by taking the said paper into custody, or by serving a certified copy of the writ upon the person owing the same and also serving upon the person in possession of said paper an order of the court enjoining its negotiation.
(d) In the case of negotiable investment securities, by complying with the provisions of N.J.S. 12A:8-317.
(e) In the case of choses in action not referred to in paragraphs (c) or (d) of this rule, by serving a certified copy of the writ upon the person owing the same.
(f) In the case of legacies or distributive shares in an estate of a decedent or a beneficial interest in a trust, by serving a certified copy of the writ upon the fiduciary.
(g) In the case of real property, by endorsing upon the writ a description of the property, and by serving a certified copy of the writ upon any person in possession of the same, provided, however, that failure to complete a levy as herein provided shall not defeat the lien of the writ as provided in N.J.S. 2A:26-9.
(h) The copy of the writ to be served pursuant to the preceding paragraphs of this rule, shall be certified to be a true copy by the Clerk of the Superior Court, a deputy clerk of the Superior Court or by an attorney.
Note: Source-R.R. 4:77-12; paragraph (h) amended June 28, 1996 to be effective September 1, 1996.
4:60-8. Inventory and Return
The sheriff shall make a true inventory of all real property attached and an appraisement of all personal property attached and shall endorse upon the writ and duplicate thereof each levy made and the date thereof, and shall annex thereto a copy of the inventory and appraisement. The sheriff shall file the same with the court and mail to the plaintiff or plaintiff's attorney within 5 days after the levy a notice of the levy and a copy of the inventory and appraisement.
Note: Source-R.R. 4:77-13; amended July 13, 1994 to be effective September 1, 1994.
4:60-9. Notice to Defendant; Defense
(a) Time for Service of Notice. Within one week after the sheriff's return is filed or within such time as fixed by court order, plaintiff shall serve upon the defendant notice of the attachment together with a copy of the order for attachment, the affidavits upon which the order was based and the complaint, if they have not previously been served upon defendant.
(b) Contents of Notice. The notice shall specify at whose suit, against whose property, and for what amount the attachment was issued; describe the property attached; state when the attachment was returned and the time within which the defendant is required to serve and file an answer or move against the complaint, the writ of attachment or the sheriff's return thereunder; and the name and address of the attorney or party upon whom the answer or motion is required to be served.
(c) Service. Service of the notice upon a defendant who has previously appeared in the action shall be made as provided by R. 1:5-2, upon a defendant who has not previously appeared in accordance with R. 4:4-4 or R. 4:4-5, or upon any defendant, as the court by order directs. If service cannot be made except by publication, a copy of the complaint, order for attachment and affidavits upon which the order was based need not be served, but plaintiff shall furnish defendant or defendant's attorney with a copy thereof within 5 days after written request therefor.
Note: Source-R.R. 4:77-14(a)(b)(c)(d)(e)(f). Paragraph (a) amended June 29, 1973 to be effective September 10, 1973; paragraphs (a), (b) and (c) amended July 13, 1994 to be effective September 1, 1994.
4:60-10. Time to Defend
(a) Where No Summons Is Served. A defendant who has not been served with summons in the action shall serve and file an answer, or move against the complaint, the writ of attachment or the sheriff's levy thereunder within 35 days after service or publication of the notice of attachment, or within such time as has been fixed by order of the court.
(b) Where Summons Is Served. A defendant who has been served with summons in the action but has not appeared therein or has failed to defend the same shall move against the attachment or the sheriff's levy thereunder within 35 days after service of the notice of the attachment and levy, or if service is made by publication alone, then within 35 days after the publication.
(c) Where Defendant Appears and Defends. A defendant who appears in the action and defends the same may move against the attachment or levy at any time before final judgment as provided by R. 4:60-11.
Note: Source-R.R. 4:77-15(a)(b)(c). Paragraphs (a) and (b) amended July 7, 1971 to be effective September 13, 1971; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
4:60-11. Motion to Vacate Writ or Levy
(a) Effect of Motion. Any attack by the defendant upon the writ of attachment or the levy shall be by motion and shall not constitute a general appearance. No objection raised by a defendant in a motion is waived by being joined with an objection to the complaint as to whether it states a claim upon which relief can be granted, or with any other objection.
(b) Proof on Motion. Upon such motion, proof may be presented by affidavits, depositions, or oral testimony. The burden of proof shall be on the plaintiff. The court may allow amendments and the submission of additional affidavits or other proof to sustain the writ or levy. All questions of fact and law shall be determined by the court without a jury.
(c) Vacation; Discharge. If the court finds that the writ of attachment should not have issued, it shall order it vacated and the levy discharged. If it finds that the levy is defective, it may order it discharged or corrected.
(d) Continuation of Action. The action shall not abate by reason of the discharge of the levy or vacation of the writ of attachment, and the court may order the issuance of other process or a new writ of attachment as the circumstances require.
Note: Source-R.R. 4:77-16(a) (b) (c) (d) (e).
4:60-12. Appearance; Judgment
(a) Effect of Appearance. At any time before final judgment defendant may enter an appearance of record in the action, and thereafter no applying claimant may intervene. Notwithstanding the appearance, the lien of the attachment, unless discharged, shall continue in favor of the plaintiff and applying claimants theretofore admitted; and proceedings may be had with respect to the attached property.
(b) Special or General Judgment. If the defendant has not been legally served with summons in the action and does not enter an appearance therein, any judgment in favor of the plaintiff shall be special against the attached property only. If the defendant has been legally served with summons in the action or if the defendant has entered an appearance therein, any judgment in favor of the plaintiff shall be general.
Note: Source-R.R. 4:77-17(a)(b)(c); paragraph (b) amended July 13, 1994 to be effective September 1, 1994.
4:60-13. Discharge From Attachment
The defendant or any person who had possession or control of the attached property at the time levy was made thereon under the writ may, at any time during the course of the action, secure the discharge of the property, in whole or in part, from the lien of the attachment and obtain the return thereof to defendant, by filing with the clerk a bond in such amount and form and with such sureties as the court by order directs and approves, after notice to the plaintiff and any applying claimants. The bond shall be conditioned to pay any judgments obtained by plaintiff and by any applying claimants, and costs, to an amount not exceeding the value of the attached property to be discharged. The filing of such bond shall not constitute a general appearance in the action.
Note: Source-R.R. 4:77-18(a)(b)(c); amended July 13, 1994 to be effective September 1, 1994.
4:60-14. Claim of Property
Any person claiming any of the property attached may proceed in the action on order to show cause pursuant to R. 4:67. The right to trial by jury or by the court without a jury shall be governed by R. 4:35.
Note: Source-R.R. 4:77-19.
4:60-15. Applying Claimants
(a) Order of Admission. At any time before the defendant shall have entered an appearance of record in the action, any person having a liquidated or unliquidated claim against the defendant, whether the claim is due or not, may apply to the court to be admitted as an applying claimant under the attachment, on verified complaint entitled in the action, and on notice to the plaintiff and to all applying claimants previously admitted, and the court shall make an order admitting such claimant upon prima facie proof of the cause of action alleged.
(b) Notice of Order. Within 10 days after the date of the order admitting the claimant as a party to the action, or within such other period of time as the court may designate in the order, the applying claimant shall serve notice thereof and, if possible, a copy of the verified complaint and order of admission as a party to the action upon the defendant in the same manner as hereinabove provided for the service by the plaintiff of notice of the attachment, and the defendant shall have the same time after such service within which to answer or move against the complaint as is allowed for answering the plaintiff's complaint.
(c) Proceedings After Admission. Proceedings on the claims of applying claimants shall not suspend or affect the course of the plaintiff's action against the defendant. Each applying claimant may defend against the claim of the plaintiff and of any other applying claimant by serving and filing notice of contest of such claim at least 10 days prior to the time fixed for the trial or proof thereof. Pending final judgment as to all claims, any surplus funds available to be applied to the judgments of applying claimants may be ordered retained by the sheriff or other officer holding the same subject to court order, or may be ordered paid into court to be paid out on court order.
(d) Special or General Judgment. If the defendant does not enter an appearance in the action, any judgment in favor of an applying claimant shall be special against the attached property only. If the defendant enters an appearance in the action, the claim of each applying claimant previously admitted to the action shall proceed in the same manner as a separate action and any judgment obtained against the defendant shall be a general judgment.
(e) Participation in Proceeds. Applying claimants shall participate, in proportion to but not in excess of their respective judgments against the defendant and costs, in the surplus, if any, of the proceeds of the attached property after the payment of costs and charges directed by court order to be paid therefrom and after payment of the plaintiff's judgment and costs, if any.
Note: Source-R.R. 4:77-20(a)(b)(c)(d)(e)(f)(g)(h)(i)(j); paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994.
4:60-16. Consolidation of Actions
Whenever 2 or more plaintiffs in separate actions shall obtain writs of attachment against the same defendant and levy upon the same property, the several actions may be consolidated for the purpose of determining the disposition of the attached property. The plaintiff whose writ of attachment first became a lien on the property shall be deemed to be the plaintiff in the consolidated action and all other plaintiffs shall be in the position of applying claimants. If such actions are pending in the same court and are triable in the same county or vicinage, the order of consolidation shall be made by any judge sitting in the court. If any of such actions are pending in different courts or are triable in different counties or vicinages, the order of consolidation shall be made by the Assignment Judge of the county where the first writ of attachment was issued, and the procedure shall be governed by R. 4:38-1 insofar as applicable.
Note: Source-R.R. 4:77-21(a) (b) (c).
4:60-17. Auxiliary Proceedings
(a) Orders to Preserve Property. The court shall fix the compensation and other costs and expenses of safekeeping the personal property attached, and shall provide for payment thereof by the parties or out of the proceeds of the attached property. The court may order sale of personal property before judgment, and may order the sheriff to take possession of attached real estate, to collect the rents, issues and profits thereof, and to manage the same. The court may order the institution and prosecution of appropriate actions and proceedings by the sheriff to obtain possession of any attached property in the hands of a third person, including the collection of attached choses in action, trust income or corpus, and legacies or distributive shares in the estate of a decedent, and may make such further orders as are necessary to protect and preserve the attached property pending the determination of the proceedings.
(b) Appointment of Receiver. The court may appoint a receiver of any attached real or personal property and may direct the sheriff to deliver the same to such receiver and may empower the receiver to perform any of the aforesaid duties and any other acts necessary to preserve the property, to collect attached assets, and to apply them as the court directs.
Note: Source-R.R. 4:77-22(a) (b).
4:60-18. Order for Dismissal
If there are no applying claimants, or if all claims have been satisfied or dismissed, the plaintiff may obtain an order dismissing the action and setting the attachment aside.
Note: Source-R.R. 4:77-23.
4:60-19. Sequestration
Writs of sequestration or proceedings in the nature thereof are superseded except to enforce a judgment or order of the court. When a judgment or order is obtained against a defendant the court may order sequestration of defendant's real and personal estate, or so much thereof as may be sufficient to satisfy the judgment or order.
Note: Source-R.R. 4:77-24; amended July 13, 1994 to be effective September 1, 1994.
RULE 4:61. REPLEVIN
4:61-1. Writ of Replevin
(a) Issuance of Writ on Notice. A writ of replevin shall issue only upon court order on motion of a party claiming the right to possession of chattels. Except as otherwise provided by paragraph (b) of this rule, the motion shall be heard on no less than three days' notice to the party in possession of the chattels, who shall file and serve any opposing affidavits or cross-motions at least one day prior to the hearing. The motion shall be granted only upon the court's finding, based on the moving papers, any opposing affidavits which may have been filed, and any testimony taken pursuant to R. 1:6-6, that there is a probability that final judgment will be rendered in favor of the movant. In lieu of ordering the issuance of the writ the court may order the party in possession of the chattels to give security for satisfaction of any judgment which may be rendered in the action, or order such other relief upon such terms as may be just in the circumstances.
(b) Issuance of Writ Ex Parte. An order for issuance of the writ of replevin without notice to the party in possession of the chattels may be entered by the court only after it finds from specific facts shown by affidavit or verified complaint that the party applying for the writ is probably entitled to possession and that, before notice can be served and a hearing had thereon, that party will probably suffer immediate and irreparable damage in that the party in possession of the chattels appears about to abscond or about to destroy, secrete or otherwise dispose of the chattels. In lieu of ordering the writ, the court may enter an order to show cause why the writ should not issue, including therein such temporary restraints as may be necessary and appropriate for preserving the chattels and fixing therein a short return date for hearing thereon in accordance with paragraph (a) of this rule.
(c) Service and Execution of Writ. The writ of replevin shall be signed in the name of the clerk of the court issuing the writ and shall be directed to the sheriff, or other officer authorized by law, of the county where the chattels are located and shall describe them with particularity. A copy of the writ shall be served upon the party in possession in the manner prescribed by R. 4:4-4 for the service of summons unless the court has otherwise provided in the order for issuance of the writ. Upon receipt of the writ of replevin and the delivery of a replevin bond or cash deposit pursuant to law, the sheriff or other officer shall forthwith cause the chattels to be replevied and delivered. The replevin bond shall be subject to the approval of the court in accordance with R. 1:13-3(a) and shall contain the terms set forth in R. 1:13-3(b). A cash deposit taken by the sheriff in lieu of a bond shall forthwith be transmitted to the clerk of the court which ordered the writ.
(d) Issuance of Summons. A writ of replevin may be issued as initial or sole process in the action or as additional process. A summons against the same defendant and additional summonses against other defendants may issue in the same action before or after issuance of the writ. If a summons or writ of replevin is not issued within 10 days after the filing of the complaint, the action may be dismissed as provided by R. 4:37-2(a).
Note: Source-R.R. 4:78-1. Former rule deleted and new rule adopted June 29, 1973 to be effective September 10, 1973; paragraph (d) adopted July 15, 1982 to be effective September 13, 1982; paragraphs (b) and (c) amended July 13, 1994 to be effective September 1, 1994.
4:61-2. Allegations of Demand and Refusal; Title
If the action is for a wrongful detainer only, the plaintiff in an action for replevin shall allege a demand and refusal of possession before commencing the action. A plaintiff in replevin who claims possession as a secured creditor shall allege both in the complaint and the motion for the issuance of the writ the existence of the debt and the existence of a security interest, perfected or unperfected, in a chattel in the possession of the debtor. If the title to the goods or chattels of the plaintiff in replevin rests upon the title of a third person or upon a special property, those facts shall be alleged.
Note: Source-R.R. 4:78-2. Amended June 29, 1973 to be effective September 10, 1973; amended July 13, 1994 to be effective September 1, 1994.
4:61-3. Defenses; Counterclaim
If the defendant in an action for replevin claims title to the goods and chattels or relies upon the title of a third person or upon a special property, the answer shall set forth those facts. All claims by the defendant for a return of the goods and chattels, for their value or for damages, or for a statutory lien, shall be made by counterclaim.
Note: Source-R.R. 4:78-3; amended July 13, 1994 to be effective September 1, 1994.
4:61-4. Judgment for Plaintiff
(a) Judgment for Damages. If the goods and chattels are delivered by the sheriff or other officer to the defendant upon the making of a claim thereto and the giving of a redelivery bond or cash deposit pursuant to law, the sheriff or other officer shall promptly make a return of the facts to the court, annexing the claim of the defendant to the writ of replevin, and return the same forthwith, and the action shall proceed as if such claim had not been made. If the plaintiff recovers, judgment shall be entered for the value of the goods and chattels and for damages sustained such as for taking and detaining them as well and may, in addition to a remedy on the redelivery bond or cash deposit, have execution against the defendant.
(b) Recovery of Possession by Plaintiff After Redelivery. If the goods and chattels have been delivered by the sheriff or other officer to the defendant and the taking is not a distress for rent, the plaintiff, instead of enforcing the judgment for damages or pursuing a remedy on the redelivery bond or cash deposit, may apply to the court upon written notice to the defendant or defendant's attorney of record for an order directing the sheriff or other officer to take possession of the goods and chattels and deliver them to the plaintiff.
(c) Recovery of Possession Where No Writ Issued. If judgment is entered for the plaintiff awarding the possession of the goods or chattels and any damages sustained and if plaintiff has not previously caused a writ of replevin to issue and had the goods delivered, the court may in the judgment direct the sheriff or other officer to take possession of the goods and chattels and deliver them in accordance with the judgment. The judgment shall be a justification of the officer for their delivery.
(d) Judgment by Default. If the goods and chattels have been delivered to the plaintiff by the sheriff or other officer, and judgment by default is entered in favor of the plaintiff, there shall be no judgment for damages, except where the defendant has refused to deliver the goods and chattels pursuant to a written demand therefor made prior to the commencement of the action.
Note: Source-R.R. 4:78-4(a)(b)(c)(d); paragraphs (a), (b) and (c) amended July 13, 1994 to be effective September 1, 1994.
4:61-5. Judgment for Defendant
(a) Election of Remedies. If the goods and chattels have not been redelivered to the defendant and judgment is entered in defendant's favor, defendant shall, except if the goods or chattels were taken as a distress for rent or if defendant has made a counterclaim for a statutory lien, be entitled, at defendant's election, to the return thereof or a judgment against plaintiff for the value of the goods or chattels and damages.
(b) Judgment on Statutory Lien. If a defendant has counterclaimed for a statutory lien, a judgment in defendant's favor shall fix the amount due.
(c) Distress for Rent; Judgment. If the plaintiff has recovered the possession of goods or chattels taken as a distress for rent and judgment is entered for the defendant, defendant shall be entitled, at defendant's election, to the return thereof, or judgment against the plaintiff for the sum in arrears for such rent at the time the distress was taken, or for the value of the goods and chattels if such value is less than the arrearages.
(d) Costs; Execution. Upon the entry of a judgment for the defendant, defendant may, in addition to a remedy on the replevin bond or cash deposit, have execution against the plaintiff.
Note: Source-R.R. 4:78-5(a)(b)(c)(d); paragraphs (a), (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994.
