Oklahoma § 12-1571 - Order of delivery - Procedure

§ 12-1571. Order of delivery - Procedure

A. The plaintiff in an action to recover the possession of

specific personal property may claim the delivery of the property at

the commencement of suit, as provided herein.

1. The petition must allege facts which show:

a.

a description of the property claimed,

b.

that the plaintiff is the owner of the property or has

a special ownership or interest therein, stating the

facts in relation thereto, and that he is entitled to

the immediate possession of the property,

c.

that the property is wrongfully detained by the

defendant,

d.

the actual value of the property, provided that when

several articles are claimed, the value of each shall

be stated as nearly as practicable,

e.

that the property was not taken in execution on any

order or judgment against said plaintiff, or for the

payment of any tax, fine or amercement assessed

against him, or by virtue of an order of delivery

issued under this chapter, or any other mesne or final

process issued against said plaintiff; or, if taken in

Oklahoma Statutes - Title 12. Civil Procedure

execution or on any order or judgment against the

plaintiff, that it is exempt by law from being so

taken, and

f.

the prayer for relief requests that the court issue an

order for the immediate delivery of the property.

2. The above allegations are verified by the party or, when the

facts are within the personal knowledge of his agent or attorney and

this is shown in the verification, by said agent or attorney.

3. A notice shall be issued by the clerk and served on the

defendant with the summons which shall notify the defendant that an

order of delivery of the property described in the petition is

sought and that the defendant may object to the issuance of such an

order by a written objection which is filed with the clerk and

delivered or mailed to the plaintiff's attorney within five (5) days

of the service of the summons. In the event that no written

objection is filed within the five-day period, no hearing is

necessary and the court clerk shall issue the order of delivery.

Should a written objection be filed within the five-day period

specified, the court shall, at the request of either party, set the

matter for prompt hearing. At such hearing the court shall proceed

to determine whether the order for prejudgment delivery of the

property should issue according to the probable merit of plaintiff's

petition. Provided, however, that no order of delivery may be

issued until an undertaking has been executed pursuant to Section

1573 of this title.

Nothing contained in this act shall prohibit a party from

waiving his right to a hearing or from voluntarily delivering the

goods to the party seeking them before the commencement of the

proceedings or at any time after institution thereof.

B. Where the notice that is required by subsection A of this

section cannot be served on the defendant but the judge finds that a

reasonable effort to serve him was made and at the hearing the

plaintiff has shown the probable truth of the allegations in his

petition, the court may issue an order for the prejudgment delivery

of the property. If an order for the delivery of the property is

issued without actual notice being given the defendant, the

defendant may move to have said order dissolved and, if he does not

have possession of the property, for a return of the property.

Notice of said motion with the date of the hearing shall be served

upon the attorney for the plaintiff in the action. The motion shall

be heard promptly, and in any case within five (5) days after the

date that it is filed. The court must grant the motion unless, at

the hearing on defendant's motion, the plaintiff proves the probable

truth of the allegations contained in his petition. If said notice

is filed before the sheriff turns the property over to the

plaintiff, the sheriff shall retain control of the property pending

the hearing on the motion.

Oklahoma Statutes - Title 12. Civil Procedure

C. The court may, on request of the plaintiff, order the

defendant not to conceal, damage or destroy the property or a part

thereof and not to remove the property or a part thereof from the

state or county, pending the hearing on plaintiff's request for an

order for the prejudgment delivery of the property, and said order

may be served with the summons.

D. No action to recover the possession of specific personal

property pursuant to this section may be brought against any city,

county or state agency or an employee of a city, county, or state

agency, if the claim alleges matters arising from incarceration,

probation, parole or community supervision.

R.L. 1910, § 4798. Amended by Laws 1974, c. 129, § 1, emerg. eff.

May 3, 1974; Laws 1976, c. 71, § 1, emerg. eff. April 26, 1976; Laws

2002, c. 402, § 3, eff. July 1, 2002.