ORCP 85 - Claim and delivery

CLAIM AND DELIVERY

RULE 85

A Claim and delivery. In an action to recover the possession of personal property, the plaintiff, at any time after the action is commenced and before judgment, may claim the immediate delivery of such property, as provided in Rule 83.

B Delivery by sheriff under provisional process order. The order of provisional process issued by the court as provided in Rule 83 may require the sheriff of the county where the property claimed may be to take the property from the defendant or another person and deliver it to the plaintiff.

C Custody and delivery of property. Upon receipt of the order of provisional process issued by the court as provided in Rule 83, the sheriff shall forthwith take the property described in the order, if it be in the possession of the defendant or another person, and retain it in the sheriff’s custody. If any part of the property is concealed in a building or other enclosure, the sheriff shall demand delivery of the property. If the property is not delivered, the sheriff shall break open the building or enclosure and take the property into possession. The sheriff shall keep the property in a secure place and deliver it to the party entitled thereto upon receiving the lawful fees for taking, and the necessary expenses for keeping the same. The court may waive the payment of such fees and expenses upon a showing of indigency.

D Filing of order by sheriff. The sheriff shall file the order, with the sheriff’s proceedings thereon, including an inventory of the property taken, with the clerk of the court in which the action is pending, within 10 days after taking the property; or, if the clerk resides in another county, shall mail or forward the same within that time.

E Dismissal prohibited. If property is taken by the sheriff pursuant to this rule, the plaintiff shall not dismiss the action under ORCP 54 A(1) until 30 days after such taking.

[CCP 12/13/80; § C amended by 2003 c.85 § 24]