US Laws, Codes, Statutes & Cases

                                   TITLE  8
                    PROVISIONAL REMEDIES IN CIVIL ACTIONS
                                  CHAPTER 3
                              CLAIM AND DELIVERY
                             OF PERSONAL PROPERTY
    8-302.  AFFIDAVIT OF CLAIM -- SHOW CAUSE ORDER -- WRIT OF POSSESSION. (1)
Where a delivery is claimed, the plaintiff, by verified complaint or by an
affidavit made by plaintiff or by someone on his behalf, filed with the court,
shall show:
    (a)  That the plaintiff is the owner of the property claimed or is
    entitled to the possession thereof, and the source of such title or right;
    and if plaintiff's interest in such property is based upon a written
    instrument, a copy thereof shall be attached;
    (b)  That the property is wrongfully detained by the defendant, the means
    by which the defendant came into possession thereof, and the cause of such
    detention according to his best knowledge, information and belief;
    (c)  A particular description of the property, a statement of its actual
    value, and a statement to his best knowledge, information, and belief
    concerning the location of the property and of the residence and business
    address, if any, of the defendant;
    (d)  That the property has not been taken for a tax, assessment, or fine,
    pursuant to a statute; or seized under an execution against the property
    of the plaintiff; or, if so seized, that it is by statute exempt from such
    seizure.
    (2)  The court shall, without delay, examine the complaint and affidavit,
and if it is satisfied that they meet the requirements of subsection (1) of
this section, it shall issue an order directed to the defendant to show cause
why the property should not be taken from the defendant and delivered to the
plaintiff. Such order shall fix the date and time for the hearing thereof,
which shall be no sooner than five (5) days from the issuance thereof, and
shall direct the time within which service thereof shall be made upon the
defendant. Such order shall inform the defendant that he may file affidavits
on his behalf with the court and may appear and present testimony on his
behalf at the time of such hearing, or that he may, at or prior to such
hearing, file with the court a written undertaking to stay the delivery of the
property, in accordance with the provisions of section 8-306, Idaho Code, and
that, if he fails to appear, plaintiff will apply to the court for a writ of
possession without further notice to defendant. If the writ of possession has
issued prior to the hearing, the defendant may apply to the court to have the
hearing set at an earlier date. Such order shall fix the manner in which
service thereof, together with copies of the complaint and affidavit, shall be
made, which shall be by personal service, or in such manner as the judge may
determine to be reasonably calculated to afford notice thereof to the
defendant under the circumstances appearing from the complaint and affidavit.
The plaintiff shall cause proof of service to be filed with the court prior to
the hearing.
    (3)  Upon examination of the complaint and affidavit and such other
evidence or testimony as the judge may, thereupon, require, a writ of
possession may be issued prior to hearing, if probable cause appears that any
of the following exist:
    (a)  The defendant gained possession of the property by larceny, as
    defined by any section of chapter 46, title 18, Idaho Code;
    (b)  The property consists of one (1) or more negotiable instruments or
    credit cards;
    (c)  By reason of specific facts shown, the property is perishable, and
    will perish before any noticed hearing can be had, or is in immediate
    danger of destruction, serious harm, concealment, or removal from this
    state, or of sale to an innocent purchaser, and that the holder of such
    property threatens to destroy, harm, conceal, remove it from the state, or
    sell it to an innocent purchaser.
    Where a writ of possession has been issued prior to hearing under the
provisions of this section, the defendant or other person from whom possession
of such property has been taken may apply to the court for an order shortening
the time for hearing on the order to show cause, and the court may, upon such
application, shorten the time for such hearing, and direct that the matter
shall be heard on not less than forty-eight (48) hours' notice to the
plaintiff.
    (4)  Under any of the circumstances described in subsection (1) of this
section, or in lieu of the immediate issuance of a writ of possession under
any of the circumstances described in subsection (3) of this section, the
judge may, in addition to the issuance of an order to show cause, issue such
temporary restraining orders, directed to the defendant, prohibiting such acts
with respect to the property, as may appear to be necessary for the
preservation of rights of the parties and the status of the property.
    (5)  Upon the hearing on the order to show cause, the court shall consider
the showing made by the parties appearing, and shall make a preliminary
determination which party, with reasonable probability, is entitled to
possession, use, and disposition of the property, pending final adjudication
of the claims of the parties. If the court determines that the action is one
in which a prejudgment writ of possession should issue, it shall direct the
issuance of such writ.