September 7, 1984
Ms. Marilyn J. Marshall
Brown County State's Attorney
Brown County Courthouse
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 84-37
Sheriff's fees on garnishment in aid of execution
Dear Ms. Marshall:
You have requested an official opinion from this office regarding the fees which a sheriff may charge for service of garnishment papers in aid of execution. You have provided the following factual situation:
FACTS:
1. Judgment creditor obtains a general execution.
2. The execution is forwarded to Sheriff together with original and one copy, a summons, affidavit of garnishment with $2.00 attached.
3. The creditor's cover letter indicates the garnishment is in aid of execution of judgment.
4. The affidavit in garnishment states there are no other funds available from which to satisfy the creditor's judgment.
5. No request to levy is made by creditor to the Sheriff.
6. Sheriff's return of service notes fees of $10.50 plus $1.00 mileage and $12.00 fees.
Based on the foregoing, you have asked the following question:
QUESTION:
May a Sheriff charge a fee for serving writ of execution and return thereof in addition to the allowable fee for serving the garnishment process, in the situation where (1) a creditor requests service of a garnishment in aid of execution of a judgment, (2) the creditor has not requested a levy, and (3) the creditor has affirmatively stated in his affidavit for garnishment that there are no other funds available from which to satisfy creditor's judgment?
Provision for fees and traveling expenses chargeable by a sheriff are made at SDCL 7-12-18 which provides, in part as follows:
The sheriff is entitled to charge the following fees and traveling expenses:
(4) For serving summons, complaint, warrant of attachment, affidavit, notice and undertaking in claim and delivery, or injunction, order to show cause, citation, or other process, and return thereof, ten dollars and fifty cents for all such process or instruments served at the same time upon the same person regardless of the capacities in which such person is served, but for all such process or instruments served upon another such person at approximately the same time at the same place, four dollars;
(8) For serving writ of execution and return thereof whether satisfied or unsatisfied, twelve dollars;
Garnishment in aid of execution must be regarded as 'other process' as that term is used in subparagraph 4 of SDCL 7-12-18.
Use of garnishment in aid of execution is provided for by SDCL 21-18-3 as follows:
At the time of issuing the summons or at any time thereafter before final judgment or after execution has been issued, in any action where garnishment is permitted, the plaintiff, or some person on his behalf, may make an affidavit stating that he verily believes that some person, naming him, is indebted to, or has property, real or personal, in his possession or under his control belonging to the defendant, or either or any of the defendants in the action or execution, naming him, and that such defendant has not property in this state other than property subject to garnishment under this chapter liable to execution, sufficient to satisfy the plaintiff's demand, and that the indebtedness or property mentioned in such affidavit is, to the best of the knowledge and belief of the person making such affidavit, not by law exempt from seizure or sale upon execution, and the amount of the claim sued upon.
The general subject of 'garnishment and other supplementary remedies,' pursuant to execution, is discussed at length in 30 Am.Jur.2d, Executions, in Sections 774 and following commencing at page 877. The question of whether issuance of an execution must precede use of garnishment is discussed at Section 784 in the following language:
The answer to the question whether the issuance of an execution is a condition precedent to the maintenance of supplementary proceedings must be found in the terms of the statute or rule of court which creates the remedy. In most cases in which the question has arisen, the courts have held, stated, or assumed that the issuance of an execution is a prerequisite. The requirement that an execution be issued is not met by delivering an execution to the plaintiff's attorney, but by placing it in the hands of the proper officer. . . .
The South Dakota Supreme Court is committed to the general rule that execution must first issue, see Central Lumber Company v. Dougherty (Madsen, et al. Garnishee), 181 N.W. 196 (S.D. 1921) and Holt v. Holt, 176 N.W.2d 51 (S.D. 1970).
The duty of a sheriff upon receipt of an execution is set forth in SDCL 15-18-15 as follows:
When a writ, warrant, or execution is delivered to any officer he must endorse thereon the day and hour when he receives it. He must proceed to execute the same with diligence. If executed, an exact description of the property seized with the date of levy, sale, or other act done by virtue thereof, must be endorsed upon or appended to the execution. If the writ was not executed, or executed in part only, the reason therefor must be stated in the return. The failure or neglect of the officer to make his return thereon as required by law shall not void his proceedings.
The right of the judgment creditor to abandon the proceedings under execution is granted by SDCL 15-18-32 and 15-18-33.
In Official Opinion No. 84-22 this office had occasion to discuss control of the execution process by the judgment creditor and quoted from the opinion of my predecessor contained at AGR 72-39 as follows:
The process involved in execution 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.
When an execution is placed in the hands of the sheriff that officer has the duty to make a return thereon which duty is set forth in SDCL 15-18-41 as follows:
Time of return of execution--Extension where levy made.--The execution must be returned within sixty days after its receipt by the officer, and filed in the office of the court or its clerk. If within said sixty days the officer shall have levied under said execution, the time for return is extended for sixty days from the date of such levy and, if an additional or several levies be made, it is extended for a period of sixty days after the date of the last levy.
The fact that the creditor did not specifically request the sheriff to make a levy pursuant to the execution would not necessarily prevent the sheriff from making a levy; SDCL 15-18-15 imposes upon the officer the duty to execute the writ when it is delivered to him. However, the absence of a request to levy coupled with the delivery to the sheriff of the garnishment documents and the statement of the judgment creditor in the affidavit for garnishment that there are no funds available from which to satisfy the creditor's judgment may be regarded as a directive to the sheriff to make no levy pursuant to the execution.
It is my opinion that in the factual situation submitted, the sheriff should serve the garnishment papers, should regard the creditor's affidavit as a directive to make no levy pursuant to the execution, and should make a return on the execution in which return the reason for not having executed the same would be stated.
For the above and foregoing reasons it is my opinion that the sheriff should charge for serving the garnishment papers $10.50 plus any allowable mileage and should charge a fee of $12.00 for making the return on the execution showing the same to be unsatisfied and no levy made at the specific direction of the judgment creditor.
It is my opinion that the answer to your question is YES.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
