Request By:
Mr. Jack Comart
Attorney at Law
Northeast Kentucky Legal Services
P.O. Box 679
320 East Main Street
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General By: Richard L. Masters, Assistant Attorney General
You have requested an opinion of this Office on the following:
May a county sheriff's office serve upon tenants, for landlords, notices to vacate when no legal action has been filed?
The answer is "no". We can find no statutory authority empowering a county sheriff's office to serve such notices. KRS 70.070 states in part:
"Each sheriff shall execute and make due return of all notices and process which come to him and may be lawfully executed by him against any person or property in his county, or upon any river or creek adjoining his county . . . ." (emphasis added)
This simply means that he must serve in his county any notice or process placed in his hands by the judge of any court.
However, a sheriff has no authority to serve a notice or process which is either irregular on its face or not issued by a court of competent jurisdiction. See 70 Am.Jur. 2d, Sheriffs, Police, and Constables, § 21, p. 146; and
Marks v. Shoup, 181 U.S. 562, 45 L. Ed. 1002 (1901).
Although a sheriff is not required to go behind the face of the notice or process to determine whether or not it was properly issued, he must be able to justify his acts by showing: (1) that he acted lawfully and in good faith in obedience to an order proceeding from a court of competent authority; (2) that the subject matter of the suit is within the jurisdiction of the court and (3) that nothing appears in the notice or process which would apprise him of any lack of jurisdiction over the person affected by the process. See 70 Am.Jur. 2d Sheriffs, Police, and Constables, § 110, pp. 206-207.
Since the notices to vacate, in question here, were not issued by any court of competent jurisdiction, the county sheriff's office is absolutely without authority under KRS 70.070 to serve these documents.
It is, therefore, our opinion that neither a county sheriff nor his deputies may, under color of state law, accommodate landlords by serving notices to vacate which are not issued by the court.