May 15, 1984

Mr. David H. Hunhoff 
Yankton County Sheriff 
Post Office Box 602 
Yankton, South Dakota 57078

OFFICIAL OPINION NO. 84-22

Jury verdict on validity of claims against property subjected to levy

Dear Sheriff Hunhoff:

You have requested an official opinion from this office regarding determination of validity of third party claims to property upon which an officer has levied.  You have provided the following factual situation:

FACTS: 

Under authority of a judgment and execution, your office levied on a specific vehicle on May 2, 1984, and on May 4, 1984, a demand for a trial by special jury was filed by a third party claimant.

SDCL 15-18-31 provides as follows: 

If the property levied on be claimed by a third person as his property, the officer may summon from his county six persons qualified as jurors to try the validity of the claim.  He must also give notice of the claim and of the time of trial to the plaintiff, who may appear and contest the claim before the jury.  The jury and the witnesses must be sworn by the officer; and if their verdict be in favor of the claimant the officer may relinquish the levy unless the judgment creditor give him a sufficient indemnity for proceeding thereon.  The fees of the jury, the officer, and the witnesses must be paid by the claimant if the verdict be against him; otherwise by the plaintiff. Each party must deposit with the officer, before the trial, the amount of his fees, and the fees of the jury, and the officer must return to the prevailing party the amount so deposited by him.

Based on the foregoing, you have asked the following questions:

QUESTIONS: 

1.  Does use of the word 'may' in the first sentence of SDCL 15‑18‑31 leave to the discretion of the officer making the levy whether or not to call a jury to try the validity of a third party claim to property on which he has levied? 

2.  Is the officer required, under the above stated facts, to call a jury?

The language used in the first sentence of SDCL 15-18-31 has appeared in South Dakota statutes at all times, in substantially the same form, since statehood.  In State v. Cassidy, 4 S.D. 58, 54 N.W. 928 (1893) our Court had occasion to refer to the provisions of that statute in connection with a criminal conviction for unlawfully taking personal property from the custody of an officer.  The Court, in affirming the conviction, used the following language: 

An ample provision is made by law for the protection of the rights of the third parties, where property may be wrongfully levied upon, or seized by an officer under process.  A party not only has the right to proceed by an action in the nature of the old common law action for trespass, trover, or replevin, but he may claim the property levied on, and have the right to the same tried in a summary manner by a sheriff's jury.  Section 5125, Compiled Laws. 

In the case of Matheson v. F.W. Johnson Co., et al., 16 S.D. 347, 92 N.W. 1083 (1902), the judgment creditor had furnished to the sheriff a sufficient bond of indemnity for proceeding prior to a jury being called to determine the validity of a third party claim. The claim was made that such bond was void. In upholding the validity of the bond the Court cited with approval the language of the New York Court in Chamberlain v. Beller, 18 N.Y. 118, construing a statute which provided 'the sheriff shall summon a jury . . .,' as follows: 

To require such a bond is not a violation of the statute which provides 'that no sheriff shall take any bond, obligation, or security by color of his office, in any other case or manner than such as are provided by law' though the statutes relating to attachment authorizes the sheriff to require indemnity only after a verdict of a sheriff's jury in favor of the person claiming the property.

The South Dakota Court stated 'while the interlocutory procedure provided by the statute, where attached property is claimed by a third person, doubtless furnishes the best protection to both the sheriff and creditor, we are of the opinion that the right to call a sheriff's jury may be waived, and an undertaking executed that is enforceable under the statute.'  In A.G.R. No. 72- 39, my predecessor, in discussing the entitlement of a sheriff to fees under an execution, had occasion to discuss the nature of executions and the control of  that process.  He did so in the following language: 

The process involved in executions is one which is confusing to the average person.  However, the law itself, surrounding your execution process, seems unmistakeable.  Whenever an execution is sought, whether or not to proceed therewith through an execution sale is strictly within the control of the judgment creditor. 

In McConnell v. Denham, 72 Ia. 494, 34 N.W. 298, approved in Lafferty v. Lafferty, 102 N.W. 626 (Mich. 1905), the courts pointed out that even after the writ of execution is executed, by levy, the judgment creditor may voluntarily release this levy, and when such occurs the levy ceases to exist. 

In Ehlers v. Gallagher, 147 Neb. 97, 22 N.W.2d 396, Peck v. City National Bank, 51 Mich. 353, 16 N.W. 681, 47 Am.Rep. 577, and Northern Alabama Railway Company v. Lowery, 3 Ala. App. 511, 57 So. 260, the courts have pointed out that it is within the power of the judgment creditor to control the enforcement of his judgment, and after execution has been issued, such judgment creditor has the authority to withhold the levy thereof, or he may restrain the sheriff from proceeding to collect by the execution process. 

Such control on the part of the judgment creditor is provided in South Dakota by SDCL 15-18-32, and 15-18-33.

Ehlers v. Gallagher, supra, held that if the sheriff is restrained from further proceeding with the execution process he cannot claim fees for the  disobedience of the instruction from the execution creditor by further proceeding with the execution process.

I agree with the opinion of my predecessor as to the nature of executions and the control of the process.

It is my opinion that:

IN RE QUESTION NO. 1:

The answer to your question is NO.  Control of the execution process is in the judgment creditor.

IN RE QUESTION NO. 2:

The answer is YES unless the judgment creditor gives a sufficient bond of indemnity before the jury is called, or abandons the execution in part or in its entirety.

Respectfully submitted,

Mark V. Meierhenry
Attorney General