Request By:
Mr. Elmer Cunnagin, Jr.
Laurel County Attorney
Courthouse
London, Kentucky 40741
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion concerning the specific duties of the sheriff upon receipt of a writ of execution from a court of competent jurisdiction.
An execution against property may issue 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. KRS 426.010. For form of execution, see KRS 426.020. The writ of execution essentially directs the sheriff to go out in the county and discover, if possible, any property owned by the judgment debtor, levy on it, and sell it to liquidate the judgment sum awarded. The sheriff, upon making a levy on the property, has the right to take such propert into immediate possession, or he may leave it in the possession of the debtor or any other person, but the person holding possession after the levy would hold it as a bailee of the sheriff. To constitute a levy the sheriff must do such acts [take possession or assume control] as would subject him to an action of trespass but for the protection of the execution. W.E. Stephens Mfg. Co. v. Miller, Ky., 429 S.W.2d 384 (1968).
The sheriff is not required to go out of his county to return an execution in a civil case. KRS 426.090.
There is no statutory form on which the sheriff makes his report after making a levy. However, the cases are clear that the property levied upon must be adequately described, i.e., with particularity and distinctness. In other words, the property must be reasonably identified. See Stephens Mfg. Co., above, p. 387. The execution is returnable on some rule day in court from 30 to 60 days from issuance. If the execution is satisfied, the sheriff simply indicates on his return that it was satisfied, except that if satisfied by sale of the property it should be so stated. If satisfied in part, he must state what part and why the residue was not satisfied. If levied and no sale was made for want of bidders, or if no property was found, he must state such facts on his return. KRS 426.040.
Property of the judgment debtor shall be liable to levy and sale under execution in the following order: First, personalty; second, land. KRS 426.130. If there is not enough personal property, the sheriff may levy on land at the same time and sell a sufficiency thereof to satisfy the execution. KRS 426.140. The defendant may select the property to be sold under certain conditions. KRS 426.150 and 426.210. See KRS 426.160 as to the time and place of sale of personalty, and 426.200 as to the conditions underlying the sheriff's sale of land to satisfy the execution. See KRS 426.190 for the kinds of title interest subject to execution sale. Land, sold under execution not bringing two-thirds (2/3) of its appraised value, may be redeemed by defendant and his representatives within a year of the day of the sale under certain conditions. KRS 426.220. Thus land sold under execution which is subject to redemption shall not be conveyed by the sheriff making the sale until after the expiration of one (1) year from the sale, nor shall he convey after that period if the land has been redeemed or an affidavit made and the money deposited with the clerk of the court as provided in KRS 426.220, unless by court order or with the written consent of the defendant in the execution. KRS 426.230. The sheriff who sells land under execution shall on demand, convey the title sold to the purchaser or his assignee, heirs or devisees, if the land is not redeemed and the redemption period has expired. KRS 426.250.
You ask to what extent the sheriff has to determine whether or not an item of property owned by defendant is exempt from execution.
Exemptions are covered in KRS Chapter 427. See KRS 427.010, 427.030, and 427.040 for exempt personal property. See KRS 427.060 and 427.100 for homestead exemption on real estate. The sheriff should consult the county attorney or other attorney for advice as to proper application of the exemption law.