dissenting.
I concurred with the conclusion reached in the first opinion filed in this matter. See First National Bank v. Southwest Yacht & Marine Supply Corp., 23 S.B.B. 253 (1984). In that opinion, this Court determined that Southwest’s exclusive remedy for wrongful replevin is limited to those remedies found in the replevin statutes, NMSA 1978, Sections 42-8-1 to -22. That opinion has now been withdrawn and rewritten, reaching a different conclusion with which I disagree. I hereby dissent for the following reasons.
The replevin statute provides for an action in all cases, where, under the common law, either replevin or detinue might have been maintained. Troy Laundry Machinery Co. v. Carbon City Laundry Co., 27 N.M. 117, 196 P. 745 (1921). At common law, an action for replevin was maintainable where there was an unlawful taking and an unlawful detention of personal property. Detinue was maintainable for the recovery of personal property where there was an unlawful detainer, regardless of the manner of the taking. Id. The replevin statute was therefore designed by the Legislature to replace the common law actions of replevin and detinue. Replevin under this statute is a possessory action. The primary object of a replevin action is the plaintiffs right to the immediate possession of the property. Johnson v. Terry, 48 N.M. 253, 149 P.2d 795 (1944). However, in a suit for replevin, the right to possession is not the only issue. The statute also provides a right to damages for unlawful detention or for the use of the property. Sandoval v. Taylor, 43 N.M. 170, 87 P.2d 681 (1939).
Currently, two sections of the replevin statute provide damages due to wrongful replevin:
Section 42-8-11. In case the plaintiff fails to prosecute his suit with effect and without delay judgment shall be given for the defendant and shall be entered against the plaintiff and his securities for the value of the property taken, and double damages for the use of the same from the time of delivery, and it shall be in the option of the defendant to take back such property or the assessed value thereof.
Section 42-8-19(A). Upon the defendant’s motion before trial, the district court shall determine the truth of the facts stated in the plaintiff’s affidavit at a hearing, to be held without delay. If the plaintiff fails to prove the truth of the facts stated, the writ shall be dissolved, the plaintiff shall be ordered to return the property to the defendant and an order shall be entered for the defendant against the plaintiff and his sureties for the attorney’s fees incurred in the dissolution of the writ and for double damages for the use of the property from the time of its delivery to the plaintiff.
This Court in Troy Laundry Machinery Co. v. Carbon City Laundry Co., 27 N.M. at 121, 196 P. at 747 (1921) interpreted the predecessor statutes to the current replevin statute and recognized:
A complete remedy and procedure is prescribed in the act itself, and nothing whatsoever is left in doubt or to be controlled by any of the common-law forms of procedure. (Emphasis added.)
Wrongful replevin is also a statutory action, since there was no action for wrongful replevin at common law. See J. Sutherland, A Treatise on the Law of Damages, § 1155 (4th ed. 1916). The rights of a defendant in a replevin suit are therefore fixed by statute. Farmers’ Cotton Finance Corp. v. White, 39 N.M. 132, 134, 42 P.2d 204, 205 (1935).
Moreover, the remedy provided by statute is exclusive where a statute creates a right or liability which did not exist at common law and also provides a specific remedy for the enforcement of the right or liability. See Munro v. City of Albuquerque, 48 N.M. 306, 150 P.2d 733 (1943). Since an action for wrongful replevin is a statutorily created right, and adequate provision for its enforcement is found in the statute, the statutory remedy is exclusive.
The majority opinion correctly recognizes that the defendant’s remedies are limited by the replevin statute. The majority quotes Giannini v. Wilson, 43 N.M. 460, 468, 95 P.2d 209, 213 (1939) which states:
Whether the replevin was simply a mistake of fact upon the part of the appellant or was in bad faith as found by the lower court is immaterial. The statute settles the matter for us. The measure of damages in this case as fixed by the statute is the amount of injury inflicted upon the appellee by the wrongful replevin * * * * (Emphasis added.)
However, after reasoning that the remedies provided by the statute are not mutually exclusive and stating that the defendant’s remedies are limited by the replevin statute, the majority, ignoring the legislative intent of the replevin statute and without citing any support, adds that “if Southwest has any claims sounding in tort or contract which are based on action taken by the Bank independent and apart from the [replevin], these claims are not barred by the replevin statute.” In doing so, the majority fails to consider that all of the theories found in Southwest’s counterclaims rely on the same operative facts of the wrongful replevin.
The overriding concern of the Court, in construing a statute, is to determine and give effect to the intention of the Legislature. Arnold v. State, 94 N.M. 381, 610 P.2d 1210 (1980). Moreover, to determine legislative intent, the Court will look primarily to the language of the statute. See Fort v. Neal, 79 N.M. 479, 444 P.2d 990 (1968). However, the Court may also consider the history and background of the statute in question. Munroe v. Wall, 66 N.M. 15, 340 P.2d 1069 (1959). It was the intent of the Legislature and the policy of the replevin statutes to provide a balance between the rights of the creditor and debt- or. See D. Dobbs, Handbook on the Law of Remedies, § 42 at 230 (1973). The statutory policy encourages the creditor to follow the statutes to afford protection for the debtor while at the same time limiting the damages the creditor can sustain should the creditor act improperly. The majority opinion damages this well-established policy. Should Southwest have other claims sounding in tort or contract which arose independent from the replevin action, these claims should not be raised in the form of a counterclaim but rather must be brought in a separate lawsuit. The decision of the trial court that the replevin statutes provide the exclusive remedy for wrongful replevin should be affirmed.
For these reasons, I dissent.