Short answer. Generally no. Section 2 of Rule 60 requires the applicant's affidavit to state that the property has not been seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis — unless it is exempt from that seizure or custody. Property already validly held under a different case ordinarily blocks a replevin application.

What the law says

That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody

Rule 60, Section 2 — Affidavit and bond. Read the full provision →

What the affidavit has to say about the property's status

Section 2 lists what the applicant's affidavit must establish before a writ of replevin can issue, and one item goes directly to your question: That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody. Property the sheriff already holds under a different case's writ falls squarely inside what this requirement addresses.

Why custodia legis is a problem for a replevin application

The requirement is written as something the applicant must affirmatively show, not something the other side has to disprove. If the property is already under custodia legis — in the sheriff's custody by authority of a different court process — the applicant's affidavit cannot truthfully state that it is free of that status. Since Section 2 makes this one of the facts the affidavit must establish, property already validly seized under another case is not a clean fit for a new replevin application over the same property.

The exemption is the one way around it

Section 2 does not treat custodia legis as an absolute bar in every case. The same clause allows the affidavit to state instead that it is exempt from such seizure or custody. If the property was seized in the other case in a manner or under circumstances that make it exempt from that particular seizure or custody, the affidavit can say so — but that is a specific factual showing about the earlier seizure, not something a replevin applicant can simply assert without support.

The bond requirement still applies regardless

Whatever the property's custody status, Section 2 also requires the applicant to post a bond, executed to the adverse party in double the property's stated value, to answer for its return if that is later ordered, and for any sum the adverse party may recover in the action. That bond requirement is separate from the custodia legis question, but it applies to every replevin application under this section, including one where the custody issue has been resolved.

Related provisions

Note. Statute text quoted on this page is reproduced from the official enactment and is linked to the full provision. The explanation around it is general legal information from Vivas & Nobles Law Office, not legal advice. Whether it applies to your situation depends on facts only a lawyer reviewing them can assess.