Request By:
Mr. I. G. Spencer, Jr.
Assistant Jefferson County Attorney
1001 Fiscal Court Building
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You, as an Assistant of J. Bruce Miller, Jefferson County Attorney, and on behalf of the Jefferson Circuit Clerk, request our opinion as to whether or not a special bailiff, appointed pursuant to KRS 454.145, has the authority to levy a writ of possession, as authorized by KRS 425.046(1)(a).
KRS 454.145 reads:
"The court, for good cause, may appoint a person to serve a particular process or order, and he shall have the same power to execute it which a sheriff has. His return must be verified by his affidavit. He shall be entitled to the fees allowed to sheriffs for similar services."
Under KRS 425.011, upon filing of the complaint or at any time prior to judgment, in an action to recover the possession of specific personal property, the plaintiff may apply pursuant to Chapter 425 for a writ of possession by filling a written motion for the writ with the court in which the action is brought. See KRS 425.012, relating to the conditions underlying the issuance of a writ of possession by the clerk of the court.
Among other requirements, KRS 425.046(1)(a) provides that the writ of possession shall be directed to the sheriff. KRS 454.140(1) provides in part that 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.
In the early case of Gowdy v. Sanders, 88 Ky. 346, 11 S.W. 82 (1889), the word "process" was defined, in the old Civil Code of Practice, to be a "writ or summons issued in the course of judicial proceedings." (Emphasis added). The word "writ" was defined as "an order or precept in writing issued by a court, clerk, or judicial officer." (Emphasis added). Thus the word "process" was held to include a writ of execution. Johnson v. Elkins, 90 Ky. 163, 13 S.W. 448 (1890) 449. Legal process is defined in Black's Law Dictionary (4th ed.), page 1370, as meaning a writ, warrant, mandate, or other process issuing from a court of justice, such as an attachment, execution, injunction, etc.
CONCLUSION
It is our opinion that a writ of possession is a judicial process, as mentioned in KRS 454.145 and 454.140. As a matter of general law, every process should first be directed to the sheriff of the county, unless he is a party to or interested in the legal action. In addition, KRS 425.046(1)(a) explicitly directs that the writ of possession shall be directed to the sheriff. While KRS 454.145 provides that the court, for good cause, may appoint a person to serve a particular process, it is our opinion that KRS 454.145 must give way to KRS 425.046(1)(a), unless it appears to the court, in considering the heavy civil case load in the Jefferson Circuit Court, or in considering the difficulty and complexity in serving a writ of possession (see KRS 425.046, 425.011(2)(c), 425.081, 425.091, 425.101, and 425.116), that the appointment of a special bailiff for a specifically designated process is in the interest of justice and the adequate and orderly working of the court. It is understandable that the sheriff's office cannot adequately take care of all the process serving because of the total statutory duties imposed upon that office. Further, the detailed statutes dealing with the writ of possession suggest difficulty and complexity in the proper execution of that writ.
Thus it is our view that the legislature designed KRS 454.145 to enable a court, where the interest of justice and the orderly working of the court demand, to resort to the appointment of a special bailiff to serve a particular and specifically designated process in that particular case only, instead of the court's having to resort to the application of KRS 454.140 or 425.046(1)(a). To conclude otherwise would impose an impediment upon a court's authority to do justice. We think the phrase "for good cause" , appearing in KRS 454.145, reflects legislative intent to leave it to the court's sound judicial discretion as to the necessity for appointing a special bailiff, although such appointing power is, on its face, in conflict with KRS 454.140 and 425.046(1)(a).
Thus, where the court has, in its discretion as described above, appointed a special bailiff under KRS 454.145 to serve a writ of possession, that special bailiff then has the authority to so serve the writ of possession, as required under KRS Chapter 425.