If the plaintiff's right to the possession of the property described in the writ of replevin is put in issue, without any disclaimer of title by the defendant, the plaintiff shall be bound to prove his right to possession, and may show the damages sustained by him by reason of the detention of the property by the defendant. If the defendant in his answer by way of counterclaim claims damages for the replevin, he may give evidence of the damages. Judgment, if for the plaintiff, whether upon default or trial, shall be for his damages and costs, and, if for the defendant, shall be for a return of the property and for his damages and costs.

(1949 Rev., S. 8265; P.A. 82-160, S. 214.)

History: P.A. 82-160 rephrased the section.

When judgment for return of property a mere formality. 51 C. 176. Plaintiff entitled to full costs, although he fails to prove title to all the articles. 54 C. 83. Plaintiff cannot prove a “general or special property” in goods which are not distinguishable from others of like kind. Id., 317. Plaintiff not bound to prove that property which was not replevied was in this state when wrongfully detained. 66 C. 546. Defendant not obliged to claim damages; may recover them subsequently in suit on replevin bond. 70 C. 340; 71 C. 86; 74 C. 392; Id., 553; 101 C. 417. Damages where lunch wagon is replevied and defendant prevails. 74 C. 552. Judgment of return and for costs proper where a plea to the jurisdiction is sustained. 64 C. 74. Nature of judgment for return of goods. 70 C. 605. Judgment as an estoppel in action on bond. 71 C. 698. Remittitur required as condition of not going to new trial. 81 C. 101. Effect of judgment for plaintiff on general issue. 69 C. 450. Costs recoverable. 40 C. 111; 48 C. 133; 54 C. 83. All the issues should ordinarily be tried together. 91 C. 319. Obligee entitled to nominal damages on bond where return of goods and payment of damages is refused, though subsequently made; 76 C. 683; so where third party, owner of goods, had taken them and suit was for expenses. 96 C. 683. No damages can be given in replevin action unless counterclaimed by defendant; elements of damage. 101 C. 61. Judgment for nominal damages on counterclaim deprives defendant of right to sue again on replevin bond; res judicata. Id., 416. Cited. 118 C. 476. Plaintiff must prevail by strength of his title and not by weakness of defendant's. 128 C. 198; Id., 508. Proof merely of actual possession by plaintiff of vehicles registered in another's name not sufficient. Id. Replevin is a purely statutory action. 152 C. 695.

Cited. 18 CA 1.