8-506C. DEFENDANT’S UNDERTAKING — RETURN OF PROPERTY. At any time the defendant may retain or require the return of all or any portion of the property upon filing with the court a written undertaking executed by two (2) or more sufficient sureties, to the effect that they are bound in an amount sufficient to satisfy the plaintiff’s claims, besides costs, or in an amount equal to the value of the specific property sought to be retained or returned which has been or is about to be attached. At the time of filing such undertaking, the defendant shall serve upon the plaintiff or his attorney a notice of filing such undertaking, to which a copy of such undertaking shall be attached; and shall cause proof of service thereof to be filed with the court.

If such undertaking is in an amount sufficient to satisfy the plaintiff’s claims, besides costs, proceedings thereunder shall terminate, unless exception is taken to such sureties. If, at the time of filing of such undertaking in an amount sufficient to satisfy the plaintiff’s claims, plus costs, the property shall be in the custody of the sheriff, such property, together with all proceeds of the sales thereof, shall be returned to the defendant five (5) days after service of the notice of filing such undertaking upon plaintiff or his attorney, unless exception is taken to such sureties.

If such undertaking is filed in an amount equal to the value of the specific property sought to be retained or returned and the court has previously determined the proper sum to be specified in such undertaking as provided in subsection (e), section 8-502, Idaho Code, the sheriff shall not execute the writ as to the specific property covered by such undertaking. If the property shall be in the custody of the sheriff, the property shall be returned to defendant five (5) days after service of the notice of filing such undertaking upon plaintiff or his attorney unless exception is taken to such sureties. If such undertaking filed in an amount equal to the value of the property sought to be returned and the court has not previously determined the proper amount to be specified in the undertaking pursuant to subsection (e), section 8-502, Idaho Code, the plaintiff may within four (4) days after service of the notice of filing give written notice to the court, the defendant, and the sheriff, if such property shall then be in the custody of the sheriff, that he objects to the amount of the undertaking. If he fails to do so, he is deemed to have waived all objections thereto and the sheriff shall not execute the writ as to the specific property covered by such undertaking, or if such property shall then be in the custody of the sheriff, it shall be returned to the defendant five (5) days after service of the notice of filing such undertaking upon plaintiff or his attorney. If the plaintiff objects to the amount of such undertaking, the court shall set the matter for hearing and upon examination of the evidence and testimony submitted and such other evidence or testimony as the judge may thereupon require, the court shall determine the proper amount to be specified in such undertaking. If the amount of the undertaking filed be found sufficient, or if the defendant file a new undertaking in such amount as fixed by the court, the property shall be returned to the defendant, unless exception is taken to such sureties on any new undertaking filed by defendant.

History:

[I.C., sec. 8-506C, as added by 1974, ch. 307, sec. 8, p. 1793.]