Request By:
Mr. Gene Cyrus
Johnson County Sheriff
Johnson County Courthouse
Paintsville, Kentucky 41240
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You were given an execution out of the Johnson Circuit Court to serve on property of certain parties in the suit. You were given serial numbers for two vehicles, a 1981 Buick and a 1979 pick-up truck. Your office, through your Chief Deputy Hobert Pack, advised the petitioner's counsel that you refused to levy on the personal property due to lack of an indemnity bond.
An execution against property may issue if a final judgment in personam is rendered in any court of record in this state for an ascertained sum of money, with interest and cost, or for either. KRS 426.010. For form of 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. W.E. Stephens Mfg. Co. v. Miller, Ky., 429 S.W.2d 384 (1968).
KRS 426.620, relating to an indemnity bond, reads:
"If an officer, who levies or is required to levy an execution upon personal property, doubt whether it is subject to the execution, he may give to the plaintiff therein, or his agent or attorney, notice that an indemnifying bond is required. Bond may, thereupon, be given by or for the plaintiff, with one or more sufficient sureties, to be approved by the officer, to the effect that the obligors therein will indemnify him against the damages which he may sustain in consequence of the seizure or sale of the property; and will pay to any claimant thereof the damages he may sustain in consequence of the seizure or sale; and will warrant to any purchaser of the property such estate or interest therein as is sold; and, thereupon, the officer shall proceed to subject the property to the execution, and, subject to the provisions of KRS 426.670, shall return the indemnifying bond to the circuit court of the county in which the levy is made."
KRS 426.620, however, was repealed by Acts 1976, Ch. 91, § 46. KRS 426.670, dealing with indemnity bonds where executions issued from quarterly or justices' courts, was repealed by Acts 1976 (Ex. Sess.) Ch. 14, § 491. KRS 426.650, as amended in 1976 (Ex. Sess.) Ch. 14, § 435, reads:
"The bond, with the appraisement annexed thereto, shall be returned to the court in which the levy was made."
The amendment of KRS 426.650 in 1976 was to eliminate any reference to KRS 426.670, which latter statute concerned executions from quarterly or justices' courts and indemnity bonds. However, by not expressly repealing KRS 426.650, an actual reference is made in that statute to an indemnity bond. The significant point is that KRS 426.650 is presently meaning-less, since KRS 426.620, which created the indemnity bond provisions, was repealed. We understand that KRS 426.650 will be removed from the effective statutes by the Statutory Reviser for the reason just given. KRS 426.625 provided that if the bond mentioned in KRS 426.620 (indemnity bond) is not given, the officer may refuse to levy the execution. However, KRS 426.625 was also expressly repealed by 1976 Acts, Ch. 91, § 46.
CONCLUSION
(1) We are unaware of any statutory provision which took the place of KRS 426.620, which repealed statute provided for an indemnity bond where a sheriff doubts that particular personal property is subject to an execution. Here we are faced with an express repeal of KRS 426.620. "It is a well established principle that a valid legislative enactment which contains an express provision repealing a particular act or part of an act is effectual to accomplish a repeal of the law it describes. The chief value of an express repeal is in the fact that it generally leaves no uncertainty as to whether the statute or parts of statutes designated have been repealed. " Sands, Sutherland Statutory Construction, Vol. 1A, § 23.07, page 219; and Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 41 L. Ed. 327, 17 S. Ct. 7 (1896). Here Section 46 of S.B. 23, Ch. 91, 1976 Kentucky Acts, reads: "KRS 426.390, 426.400, 426.410, 426.620, 426.625, 426.630, 426.635 are repealed. " (Emphasis added). See also Dreidel v. City of Louisville, 268 Ky. 659, 105 S.W.2d 807 (1937) 808, as to an express repeal.
(2) Unless you or your attorney are able to find a substantive statutory provision making the execution of such bond a condition precedent to levying on such property, you will simply have to go ahead and levy on the personal property in question. We are assuming that the plaintiff obtained a final judgment in personam in your circuit court against defendants who allegedly own the motor vehicles in question. You may want to go to the Sheriffs' Association to ask the General Assembly to restore the indemnity bond. From a sheriff's viewpoint, the indemnity bond would protect him as to civil damages if he makes a mistake in levying under an execution. However, it is understandable that the legislature, in repealing KRS 426.620, had in mind repealing the statute which, without adequate guidelines, may be considered as an impediment in the effective levying under an execution. The statute said. "If an officer doubts whether . . ." The statute left it up to the officer as to whether he entertained a doubt as to particular property's being properly subject to the execution. It was a subjective phenomenon without any guidelines; and the indemnity bond was required, where a sheriff entertains the "doubt", as a condition precedent to the levy under the execution. We recite this analysis in order to reflect the polarity of viewpoint.