Request By:
Mr. Dale M. Morris
Attorney at Law
Hodgenville, Kentucky 42748
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether a sheriff can legally refuse to serve or attempt to serve a civil summons for the reason that he has not been paid to serve it, or because there is a bill outstanding due him from the person requesting the services.
KRS 70.070 provides that 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.
KRS 24A.140(2) provides that the sheriff shall be compensated for services rendered to the district court in the same manner and at the same rates for similar services rendered to the circuit court.
KRS 454.140 reads:
"(1) Every process in an action or proceeding shall be directed to the sheriff of the county; or, if he be a party, or be interested, to the coroner; or, if he be interested, to the jailer; or, if all these officers be interested, to any constable.
"(2) The summons or an order for a provisional remedy, in an action or proceeding, may, at the request of the party in whose behalf it is issued, be directed to any of the officers named in subsection (1) of this section who is not a party to nor interested in the action."
Thus where a summons is issued in a civil suit, KRS 454.140 requires that it be directed to the county sheriff for service, unless the sheriff is a party to the suit. If he is a party to the suit, or has an interest in the suit, the civil process must be directed to the coroner, etc., as the statute directs. Under subsection (2) of the statute, the summons in such suit may, at the request of the party in whose behalf it is issued, be directed to any of the officers named in subsection (1) of the statute who is not a party to nor interested in the action. See Stewart v. Commonwealth, 209 Ky. 372, 272 S.W. 906 (1925) 907.
Now, assuming that the summons has been properly directed and delivered to the county sheriff for service, KRS 24A.170(5) provides that "The following fees shall be paid directly to the sheriff or other officer serving the process by the party requesting the service, at the time of the request: Service of process (per process) $10.00." (Emphasis added).
The answer to your question is that where the summons is properly delivered to the sheriff for service, the party requesting the service must, at the time of requesting the service, pay the sheriff a fee of $10.00 for each process to be served.
The statutes make no provision for the sheriff's refusal to serve or attempt to serve the process where he is not immediately paid for an outstanding and unrelated fee bill. He can, under KRS 24A.170(5), refuse to serve or attempt to serve the process until the $10.00 per process is in his hands. Like Omar Khayyam, the statute says in effect "Take the cash and let the credit go."
In the event that actual service of process cannot be effected, the sheriff's advance payment of the fee would be converted into the sheriff's reimbursement of the person paying the fee. The phrase "serving the process" denotes actual service under KRS 24A.170(5). The statute does not mention "attempted service of process." Unless the General Assembly spells out in a statute that the sheriff will receive the fee where he makes a good effort to serve it, but without success, the retention of such fee by the sheriff is not authorized where he does not actually serve the summons. See OAG 83-243, published, Banks-Baldwin, 2-299, September, 1983. See also Ryan v. Collins, Ky., 481 S.W.2d 85 (1972) 87. A return to be valid must involve a valid and actual service of process. Presently the sheriff does not get paid for merely attempting to bring a person into court on a summons.
Your second question is what is the remedy of the person requesting the service of process, where the sheriff refuses to serve the process for the requester for the reason that the requester owes him a fee bill involving an unrelated matter.
KRS 70.070 expressly requires the sheriff to execute and make due return of all process coming lawfully to him. If the sheriff refuses to serve the summons for failure to pay the advance fee of $10.00, that would be legal under KRS 24A. 170(5), which requires payment at the time of the request for service. However, where the sheriff refuses on the ground that the requester owes him for an unrelated fee, the sheriff would be in violation of KRS 70.070. In addition, the failure of the sheriff to serve a summons validly directed to the sheriff and placed in his hands would constitute a violation of CR 4.01(1) (b), which involves the issuance of a summons for personal service by the clerk of the court, CR 4.03 and CR 4.04.
For such illegal failure to serve the summons, the sheriff would be liable on his official bond, for such neglect of duty. See KRS 70.020; Phillips v. Ronald, 65 Ky. (3 Bush) 244, 96 Am.Dec. 216 (1867); and 80 C.J.S., Sheriffs and Constables, § 184, page 433. Also see Thomas v. Tehan, Ohio, 242 N.E.2d 559, 16 Ohio St. 2d 25; and Commonwealth v. Gill, 53 Ky. 20, 14 B. Mon. 20 (1853).
It was written in Young v. Knight, Ky., 329 S.W.2d 195 (1959) 199, that "The power of a court to punish for contempt extends to all persons who interfere with the proper exercise of its judicial functions." Where a sheriff illegally refuses to serve a summons legally placed in his hands for service, he would be subject to the court's holding him in contempt, since the illegal failure to serve summons would constitute an interference with the proper exercise of the court's judicial functions. Where the summons is not served, such party is not before the court. While it has been held that the contempt power (providing punishment) requires personal jurisdiction (see Lyons v. Bryan, Ky., 273 S.W.2d 838 (1954)), a sheriff who is directed by the court, in effect, to serve process, is acting under the general judicial authority of the court. Thus, although he is not a party and has not been brought into court by a process involving him personally, he is an agent of the court and is necessarily, for the sake of justice, amenable to the contempt powers of the court for illegal failure to serve process. Obviously, contempt would not apply where it is shown that the process cannot reasonably be served. In addition, Young v. Knight, above, strongly suggests that the contempt power extends to all persons who interfere with the proper exercise of the court's judicial functions, whether they are parties, or subpoenaed, or not. The justification for coercive punishment, such as imprisonment, rests upon the inherent power of courts to punish contempt. Hardin v. Summitt, Ky., 627 S.W.2d 580 (1982).