Pre-Judgment Seizure

When an action is commenced for the recovery of personal chattels in specie, if the plaintiff, his agent, or attorney makes affidavit that the property sued for belongs to the plaintiff and executes a bond in such sum and with such surety as may be approved by the clerk, with condition that if the plaintiff fails in the action, he will pay the defendant all such costs and damages as he may sustain by the wrongful complaint, it is the duty of the clerk to endorse on the summons that the sheriff is required to take the property mentioned in the complaint into his possession unless the defendant gives bond payable to the plaintiff, with sufficient surety, in double the value of the property, with condition that if the defendant fails in the action he will, within 30 days thereafter, deliver the property to the plaintiff and pay all costs and damages which may accrue from the detention thereof. If the defendant neglects for five days to give such bond, the property sued for must be delivered to the plaintiff on his giving bond, with sufficient surety, in double the value of the property, payable to the defendant, with condition to deliver the property to the defendant within 30 days after judgment in case he fails in the action and to pay all damages for the detention of the property and costs of the action. If the plaintiff fails to give such bond for five days after the expiration of the time allowed the defendant, the property must be returned to the defendant. (Ala.Code 1975 § 6-6-250)

At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by law except that there can be no seizure of property through judicial process prior to the entry of judgment other than by a judicial officer acting pursuant to the procedure set forth in Rule 64. (Alabama Rules of Civil Procedure, Rule 64)

On filing of the Motion the Judge has two options, grant the Motion immediately or set the motion for a hearing and require notice to the defendants.  For constitutional reasons, judges generally are reluctant to grant motions for writ of seizure without a hearing. The prior Alabama detinue statute (Tit. 7, § 918 Code of 1940) was held unconstitutionally defective in light of the decision by the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983 (1972), at the instance of a debtor who had received no notice or hearing prior to the seizure of property. Yates v. Sears, Robuck, and Company, 362 F. Supp. 520 (M.D. Ala. 1973). However, judges will consider an immediate order upon compelling facts such as the risk of concealment, transfer or damage to the property if it remains in the possession of the defendant.  

None.