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).
