Request By:
Mr. Gary Lawson
Clark County Sheriff
P.O. Box 352
Courthouse
Winchester, Kentucky 40391
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter to this office concerns the sheriff's fee relating to an execution for debt. The letter reads:
"KRS 64.090 relating to Sheriff's fee for collecting money under execution allows the sheriff six percent of the first three hundred dollars and three percent of the balance if the debt is paid, sold or delivery bond is given and not complied with and one half of this commission if the defendant replevies the debt or the writ is stayed. It is a long standing discussion between our office and attorneys if this six percent (three percent) is based on the amount of the judgment or the value of the item sold or levied on. I have been unable to find anything specifically stating what figure is to be used as a basis for the fee.
"The question for clarification being, what figure is used as a basis for the sheriff's fee pertaining to an execution for debt."
KRS 64.090, relating to the sheriff's fees, reads in part:
"Collecting money under execution or distress warrant, if the debt is paid or the property sold, or a delivery bond given and not complied with, six percent (6%) on the first three hundred dollars ($300) and three per cent (3%) on the residue; when he levies an execution or distress warrant, and the defendant replevies the debt, or the writ is stayed by legal proceedings or by the order of the plaintiff, half of the above commissions, to be charged to the plaintiff and collected as costs in the case."
KRS 426.010 provides that if a final judgment in personam is rendered in any court of record in Kentucky for an ascertained sum of money, with interest and cost, or for either, an execution against property may issue thereon. See
Stephens Mfg. Co. v. Miller, Ky., 429 S.W.2d 384 (1968) 386. The required form of the execution is stated in KRS 426.020, which commands the sheriff that out of the estate of the debtor he must cause to be made the sum of the specific amount of dollars which the creditor has, in a specified court, "recovered against him for debt," etc. (Emphasis added). The case of
O'Connor v. Stone, Ky., 43 S.W. 483 (1897) held that there must be a judgment, order or decree of court to support an execution, otherwise it will be null and void and will confer no authority on the officer to whom it is directed. See also
Carmical v. Broughton's Adm'x, 249 Ky. 749, 61 S.W.2d 612 (1933) 613.
Within the above frame involving an execution, it is our opinion that under the language of KRS 64.090, relating to the sheriff's fee, and where the judgment debt is paid, or the property is sold to satisfy the judgment debt, or a delivry bond given is not complied with (KRS 426.580, where owner of property binds himself to deliver property for sale), the six percent (6%) and three percent (3%) calculations in arriving at the sheriff's fee are based upon the amount of the judgment debt. Thus where the precise amount of the judgment debt is paid or where the sale of the property brings the exact amount of the judgment debt, the judgment debt is the basis for the fee. Where for any reason the amount paid is less than the judgment debt, or where the property upon sale brings less than the judgment debt, the sheriff's fee calculations must be based upon the precise amount of money so paid or resulting from the sale of the property. See KRS 426.040. In the case of a delivery or forthcoming bond dealt with in KRS 426.580, the obligors are liable for the value of the property, with interest and costs. KRS 426.590. In such case, the sheriff's fee would be based upon the value of the personal property involved, not to exceed the judgment debt amount. Where defendant replevies the debt, or the writ is stayed by legal proceedings or by the order of the plaintiff, the calculation of half of the commissions will be based upon the judgment debt amount.
While the form of the execution includes the judgment debt, interest and costs, KRS 64.090 stresses the "debt", which can only mean "judgment debt" in view of KRS 426.010. If the legislature intended for the base, upon which the percentage factors operate, to include interest and costs, it could have said so. In considering that KRS 64.090 is ambiguous and doubtful as to the base upon which the percentage factors operate to determine your fees, it is our view that the statute is subject to the rules of construction. We believe our construction expresses the clear overall purpose and intention of the legislature in providing for such fee in levying execution for debt.