Request By:
Mr. Carl F. Eversole
Attorney at Law
187 House Manor
London, Kentucky 40741
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to a district court money judgment, providing 6% interest, with costs, and that if not paid in due time an execution shall issue from the court clerk. The judgment has been duly entered. You ask whether the judgment creditor must obtain the consent and permission of the court to have the clerk issue the execution?
You told me by telephone that the clerk was confused about the law and you had to personally ask the court to direct the clerk to issue the execution, which the court apparently felt was unnecessary. For the future practice in your county and over the state generally you feel it would be helpful to have the view of this office on this important procedure relating to enforcement of judgments in Kentucky, especially since time is of the essence in that context. Property subject to execution may be here one day and gone the next.
If a final judgment in personam is rendered in any court of record in this state for an ascertained sum of money, with interest and cost, or for either, an execution against property may issue thereon. KRS 426.010. Thus an execution may issue from district court under these circumstances. The required form of the execution is stated in KRS 426.020. The court held in
Butler v. Jackson, 187 Ky. 555, 219 S.W. 1082 (1920) 1083, that KRS 426.010 [then K.S. § 1650] by its explicit terms gives the right of execution, whether expressly so provided for in the judgment or not.
No execution may issue on any judgment, unless specifically ordered by the court, until after the expiration of ten (10) days from the rendition of the judgment. KRS 426.030. If the latter time element is not observed, an execution would be void.
Adams v. Napier, Ky., 334 S.W.2d 915 (1960) 916.
The general rule is that in the absence of a statute to the contrary, execution on a judgment may be issued by the clerk of the court which rendered the judgment. 33 C.J.S., Executions, § 56, p.p. 188-189. Further, "in the absence of statute requiring it, leave of the court is ordinarily unnecessary to authorize the issuance of an execution on an unconditional judgment." Ibid., § 59, p. 191.
It is our opinion that the clerk in this situation can issue the execution without any other specific direction or order of the court. See
Hatfield v. Kentland Coal & Coke Co., 247 Ky. 825, 57 S.W.2d 1000 (1933) 1002.
See
Burton v. McFarland, 3 Ky. L.Rep. 536 (1882) holding that the circuit clerk was liable for failing to issue an execution, which plaintiff was entitled to by terms of the judgment, when directed to do so by plaintiff's attorney. See also KRS 426.050 involving the issuance of a writ of execution by the court clerk.
Land cannot be levied on under execution from the district court. This [levy on land under execution] was specifically prohibited in KRS 25.060, but the statute was repealed in 1976 [Ex. Sess., Ch. 14, § 491, eff. January 2, 1978.] However, since a levy on land under execution affects title thereto, KRS 24A.120(1)(a) specifically excludes land title matters from the jurisdiction of district court. Also see the venerable case of