Request By:
Mr. James D. Lyon
Attorney at Law
171 North Upper Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise this question concerning writs of execution:
"In a situation where a judgment debtor has insufficient personal property upon which execution may be had, can the circuit clerk require that the judgment plaintiff pay for two executions, one for personal property and then one for real property, before any execution of real property can be issued?"
We assume that a final judgment in personam has been rendered in a court of jurisdiction for an ascertained sum of money. KRS 426.010. The issuance of an execution upon a judgment is controlled by the recovering party. Hatfield v. Kentland Coal & Coke Co., 247 Ky. 825, 57 S.W.2d 1000 (1933) 1001. For the form of the 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 property 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.
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. See also KRS 426.190. If there is not enough personal property to satisfy the judgment debt, 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.
CONCLUSION
As pointed out above, the issuance of an execution is controlled by the recovering party. The issuance is not controlled by the clerk. Thus where the judgment debtor has insufficient personal property upon which execution can be had, the circuit clerk has no statutory authority to require the issuance of two executions, one for personalty and one for real estate. The one writ which the judgment plaintiff has procured (issued) will suffice. KRS 426.140 explicitly provides that if there is not enough personal property, the "officer may levy on land at the same time" and sell a sufficiency thereof to satisfy the execution. (Emphasis added). There is nothing in that statute suggesting that more than one writ of execution is necessary under those stated factual circumstances. Note also that the form of the execution in KRS 426.020 does not distinguish between levying on personalty and realty as such. Thus it is up to the judgment plaintiff to have an execution issued. Then it is up to the sheriff to execute the writ and make his return to the best of his ability pursuant to the procedure outlined in KRS Chapter 426. See W.E. Stephens Mfg. Co. v. Miller, Ky., 429 S.W.2d 384 (1968).
While a good practice would be to recite in the writ that personal property shall first be subject to the writ and if not sufficient, then real estate would be subject to levy, the court, in Anderson v. Blackburn, Ky., 297 S.W.2d 919 (1957), upheld a levy and sale of real property, though only personal property was mentioned in the writ, the court holding that such error or mistaken recital was surplusage in view of the statutory purpose of levying execution to satisfy a money judgment. The clerk's fee for issuing the one writ of execution is $10.00. KRS 23A.200(2)(d). The fee must be paid to the clerk at the time the service is requested. KRS 23A.200(3).